Preview
FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023
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Filed pursuant to Section 26 of the Companies Act
THE COMPANIES ACT C,'')
L.) 1 DEC 2019
COMPANY LIMITED BY SHARES
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ARTICLES OF ASSOCIATION
OF
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SNBNY HOLDINGS L LIMITED
MITED
SNBNY HOLDINGS LIMITED Document 034 (10)
AMENDED ARTICLES OF
ASSOCIATION
1. In the interpretation and construction of these Articles, unless there is something in
the subject or context inconsistent therewith, the capitalised words hereinafter
contained shall bear the meanings set opposite to them respectively:
The "Company" shall mean:
"SNBNY Holdings Limited"
The "Act" shall mean the Companies Act 2014 (such Act and every provision thereof
as amended or re-enacted from time to time) of Gibraltar, and every other Act for
the time being in force in Gibraltar concerning companies with limited liability
necessarily affecting this Company;
"Allocation Notice" shall have the meaning ascribed to it in Article 19;
"Applicant" shall have the meaning ascribed to it in Article 19;
These "Articles" or "Presents" shall mean the present articles of association of the
Company and all supplementary, amended or substituted articles of association of
the Company for the time being in force; PROVIDED that any reference herein to
"D shall mean the articles of association of the Company
"these Articles marked "D"" 1111
adopted by special resolution of the Shareholders on December 4th,
4th , 2019;
"Board" shall mean the board of Directors of the Company;
"Business Day" shall mean aa day on which retail banks are generally open for
business in Gibraltar and in New York;
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"Cessation of Disability" shall have the following meaning:
(a) With respect to JYS, it shall mean such time as two physicians, each of whom
is aa faculty member in the area of neurology at any premier medical school in any
part of the world, shall have certified that JYS is competent and able to act prudently
and effectively in financial affairs; and
(b) With respect to any individual other than JYS, it shall mean, in the case of
Disability pursuant to clause (2)(a) of the definition of "Disability", such time as aa
court shall have determined that the individual is competent, or, in the case of
Disability pursuant to clause (2)(b) of the definition of "Disability", such time as two
physicians, each of whom is aa faculty member in the area of neurology at aa premier
medical school in any part of the world, shall have certified that the individual is
competent and able to act prudently and effectively in financial affairs.
"Class A Redemption Event" shall mean the later to occur of (x) the death of JYS and
(y) the death of VS;
"Class A Shares" shall mean any or all (as the context may require) of the Class A
non-convertible redeemable shares of the Company that are designated as Class A
Shares having aa nominal value of USD 1.00 (one United States Dollar) in the capital of
the Company conferring on the holders thereof the rights, entitlements and
restrictions more particularly set out in these Articles marked "D";
B Shares" shall mean any or all (as the context may require) of the Class B
"Class B B
non-redeemable and non-convertible ordinary shares of the Company having aa
nominal value of USD 1.00 (one United States Dollar) in the capital of the Company
conferring on the holders thereof the rights, entitlements and restrictions more
particularly set out in these Articles marked "D";
B Trigger Event" shall mean the death of JYS;
"Class B
"Consideration" shall have the meaning ascribed to it in Article 19;
"Control" shall mean with respect to aa Person (other than an individual) (a) the
direct or indirect ownership of more than 50% of the voting securities of such
Person; or (b) the right to appoint, or cause the appointment of, more than 50% of
the members of the board of directors (or similar governing body) of such Person; or
(c) the right to manage, or direct on aa discretionary basis the general management
and policies of such Person or the assets of such Person; or (d) the right to receive,
directly or indirectly, aa simple majority of the proceeds arising from:
(i)
(i) any declaration of aa dividend; or
(ii) aa distribution arising in the course of winding up, whether solvent or
insolvent; or
(iii) any return of capital; and
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the expressions "Controlled" 11
"Controlling shall be construed accordingly and, aa
"Controlled and "Controlling" 11
"Change of Control" occurs if aa Person who Controls any body corporate ceases to
do so or if another Person acquires Control of it;
"Descendant" of a person means (i) any lineal descendant of that person; (ii) any
legally adopted child of that person or of any lineal descendant of that person; or (iii)
any legally adopted child or lineal descendant of aa person described in the preceding
sub-clause (ii);
Relative means (i) the spouse of JYS; or (ii) any Descendant of JYS (and
"Designated Relative" 11
"Designated Relatives" shall mean any one or more of them);
"Directors" shall mean all of the directors for the time being of the Company (or
where the context so admits, the board of directors of the Company and, "Director"
shall mean any one of them);
"Disability or "Disabled"
"Disability"
11
"Disabled shall mean,
11
(1) With respect to JYS, it shall mean such time as five physicians, each of
whom is a faculty member in the area of neurology at a premier medical
school, two of whom have their primary medical practice in the United
States, one of whom has his or her primary medical practice in the United
Kingdom, one of whom has his or her primary medical practice in Brazil, and
one of whom has his or her primary medical practice in a state that is part of
the Western European Union at the date hereof (for which purpose a state
shall be deemed a part of the Western European Union if it is aa member,
observer or associate member (but not an associate partner) of the Western
European Union), shall have certified that JYS is incompetent or otherwise
unable to act prudently and effectively in financial affairs, and such
certification shall have been solicited by VS and aa majority of the members of
the class of individuals consisting of the children of JYS who are then living
and not Disabled or, if VS is not then living or is Disabled, such certification
shall have been solicited by a majority of the members of the class of
individuals consisting of the children of JYS who are then living and not
Disabled.
(2) With respect to any individual other than JYS, it shall mean such time as
either: (a) aa committee, guardian, conservator or similar fiduciary shall have
been appointed for such individual pursuant to a judicial or similar
proceeding, or (b) three physicians, each of whom is aa faculty member in the
area of neurology at a premier medical school in any part of the world, shall
have certified that the individual is incompetent or otherwise unable to act
prudently and effectively in financial affairs.
Notwithstanding the foregoing, a person shall not be deemed to be Disabled or
suffering from aa Disability at any time after a Cessation of Disability shall have
occurred with respect to all the Disabilities that such person has suffered.
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"Dividend" shall include bonus;
"Encumbrance" includes any interest or equity of any Person (including, without
limitation, any right to acquire, option, right of pre emption, right of conversion, title
retention, right of set-off) or any charge, debenture, mortgage, pledge, lien,
assignment, hypothecation, or any other encumbrance, priority, security agreement,
security interest or arrangement of whatever nature over or howsoever created or
arising in the relevant property or any agreement to create any one or more of the
foregoing;
"extraordinary resolution" shall mean any resolution adopted by aa majority of not
less than three-fourths of the votes cast at an extraordinary general meeting by the
holders of the Voting Shares;
"Expert" shall mean the Person appointed in accordance with Articles 33 to 43
(inclusive) to determine the Fair Value of OTE Shares;
"Fair Value" shall mean the value of any Shares determined in accordance with
Article 28;
"Family Trust" means aa trust, foundation or similar settlement established
exclusively for the benefit of JYS and/or any one or more Designated Relatives,
provided that aa charitable trust or foundation or other charitable organisation may
be aa contingent remainderman or default beneficiary of any such trust, foundation or
similar settlement if neither JYS nor his spouse is alive and if there are no living
Descendants of JYS;
"First Offer Period" shall have the meaning ascribed to it in Article 13;
"general meeting" shall mean any meeting of the holders of the Voting Shares;
"Initial Surplus Sale Shares" shall have the meaning ascribed to it in Article 15 of
these Articles;
"Issue Notice" shall mean the notice issued by the Board to the Shareholders who
own Voting Shares in accordance with Article 11;
"Issue Price" shall mean, in respect of any Unallotted
Un allotted Share, any consideration or the
subscription price paid (or agreed to be paid) (as applicable) in respect of that
Unallotted Share;
"JYS" shall mean Joseph Yacoub Safra of Residence des Alpes, appt N°2, Route des
Zires 16, 3963 Crans-Montana, Valais, Switzerland and being the sole registered
holder and absolute beneficial owner of all of the issued Shares in the Company as at
the date that these Articles marked "D" were adopted as the articles of association
of the Company;
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"Members" or "Shareholders" shall mean the duly registered holders from time to
time of the Shares in the capital of the Company;
"Notice of Obligatory Transfer Event" shall have the meaning ascribed to it in Article
25;
"Obligatory Transfer Event" shall mean, in relation to aa Shareholder (or the
beneficial owner of the Shares held by that Shareholder), the occurrence of any
event specified in Article 24 that applies to that Shareholder (or the beneficial owner
of the Shares held by that Shareholder);
"Obligatory Transfer Notice" shall mean the notice issued by the Company to those
Shareholders who own Voting Shares and who are not the subject of an Obligatory
Transfer Event in accordance with Article 31;
"ordinary resolution" shall mean any resolution adopted by aa simple majority of the
votes cast at aa general meeting by the holders of the Voting Shares;
"OTE Shareholder" shall have the meaning ascribed to it in Article 24;
"OTE Shares" shall mean all of the Shares either registered in the name of aa
Shareholder who is subject to an Obligatory Transfer Event or beneficially owned by
aa Person who is subject to an Obligatory Transfer Event; subject to the provisions of
these Articles, such OTE Shares shall be offered for sale to the other Shareholders by
the Board in accordance with Articles 25 to 32 (inclusive);
"Permitted Transfer" means any of the following: (i) aa Transfer of Shares that is
approved in writing by JYS, in his sole discretion, while he is alive and not Disabled;
(ii) aa Transfer of Shares to aa Permitted Transferee after the death of JYS or after the
occurrence and during the continuance of the Disability of JYS; and (iii) aa Transfer of
such number of Class B B Shares held by or on behalf of aa Descendant to such
Descendant's spouse upon the Descendant's death to the extent that such Transfer
is required by the applicable laws governing the minimum inheritance rights of such
spouse upon such Descendant's death.
"Permitted Transferee" means JYS and/or aa Designated Relative and/or aa Family Trust;
"Person" shall, where the context so permits, be construed as aa reference to any
natural person, firm, company, corporation, government, state or agency of aa state
or any association or partnership (whether or not having separate legal personality)
or any recognised legal entity or any one or more of the foregoing;
"Proposed Transferee" shall mean the allottee named in the Issue Notice, or the
proposed transferee named in the Obligatory Transfer Notice (as the case may be);
The "Register" shall mean the register of members of the Company to be kept by the
Company pursuant to the Act;
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"Registered Office" shall mean the registered office from time to time of the
Company;
"Respective Proportions" shall mean, in relation to aa Shareholder at any time, the
proportion which the number of votes that may be cast by the Voting Shares then
held by that Shareholder bears to the total number of votes that may be cast by all
Voting Shares in issue; but, only in the context of Articles 13 to 18 (inclusive), shall
mean, in relation to aa Shareholder, the proportion which the number of votes that
may be cast by the Voting Shares then held by that Shareholder bears to the total
number of votes that may be cast by the Voting Shares then held by the other
Shareholders who received an Issue Notice or an Obligatory Transfer Notice pursuant
to the provisions of Articles 13 to 15 (inclusive);
"Second Offer Period" shall have the meaning ascribed to it in Article 16;
"Second Surplus Shares" shall have the meaning ascribed to it in Article 18;
"Shares" shall mean the authorised or issued (as the context requires) shares of any
class from time to time in the share capital of the Company;
"Significant Shareholder" shall mean, at any time, any Shareholder who owns Voting
Shares that entitle such Shareholder to cast, while VS is alive, at least 7.2% (seven
and two- tenths of aa percent) of the maximum number of votes then entitled to be
cast by the holders of all Voting Shares then in issue, and after VS is no longer alive,
at least 8.5% (eight and five-tenths of aa percent) of the maximum number of votes
then entitled to be cast by the holders of all Voting Shares then in issue;
"special resolution" shall mean any resolution adopted by aa majority of not less than
three-fourths of the votes cast at aa general meeting by the holders of the Voting
Shares;
"Transfer" means any allotment, issue, gift, transmission, transfer, sale, disposal,
conveyance, assignment, Encumbrance or other transfer, whether voluntary or
involuntary, of aa legal, beneficial or other interest in aa Share, or the creation of an
interest or trust over that Share, or whether by operation of law or otherwise (and
"Transferred" and "Transferring" shall be construed accordingly as the context
requires); provided that for purposes of these Articles, aa Transfer shall not be
deemed to include aa Transmission of Shares until such time as the death,
bankruptcy, succession, divorce, marriage or such event having similar effect to the
foregoing of aa Shareholder (or the beneficial owner of the Shares held by that
Shareholder) occurs or the law otherwise operates to Transmit Shares;
"Transfer Shares" shall mean the OTE Shares and/or Unallotted Shares as the
context may require;
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"Transmission" means the transmission of Shares as aa consequence of the death,
bankruptcy, succession, divorce, marriage or such event having similar effect to the
foregoing, of the registered holder or beneficial owner of Shares or otherwise by
operation of law (and "Transmit" shall be construed accordingly);
"Unallotted Share" shall mean those unallotted and unissued Shares in the
authorised share capital of the Company which are the subject of an Issue Notice and
which are being offered for subscription to the Shareholders by the Board in
accordance with these Articles;
"Voting Shares" shall mean (x) prior to the occurrence of the Class B B Trigger Event,
the Class A Shares only, (y) after the occurrence of the Class B
B Trigger Event and prior
to the occurrence of the Class A Redemption Event, the Class A Shares and the Class
BB Shares, and (z) after the occurrence of the Class A Redemption Event, the Class BB
Shares only;
"VS" shall mean Vicky Safra of Residence des Alpes, appt N°2, Route des Zires 16,
3963 Crans-Montana, Valais, Switzerland and being the spouse of JYS as at the date
that these Articles marked "D" were adopted as the articles of association of the
Company;
Unless the context otherwise requires, words (including defined terms) importing
the singular number shall include the plural and vice versa, and words (including
defined terms) importing the masculine shall include the feminine and neuter and
vice versa;
Unless the context otherwise requires, aa reference to an "Article" is to an article of
these Articles;
Unless aa contrary indication appears, any reference to these Articles is aa reference to
these Articles as amended, varied, supplemented and replaced from time to time;
The expressions "hereunder", "herein", "hereof" and "hereto" and similar
expressions shall be construed as references to these Articles as a whole and not
limited to the particular Article in which the relevant reference appears;
Any reference to an enactment, statute or statutory provision includes a reference to
such enactment, statute or statutory provision as from time to time amended
extended or re-enacted; and
If any Article hereof (or part of any Article) is found by any court or administrative
body of competent jurisdiction to be invalid, unenforceable or illegal, the other
Articles shall remain in force. If any invalid, unenforceable or illegal Article (or part
thereof) would be valid, enforceable or legal if some part of it were deleted or
modified, the Article shall apply with whatever modification is necessary to give
effect to the intention of JYS as at the date that these Articles marked "D" were
adopted as the articles of association of the Company.
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2. prov1s1ons hereinafter contained the model articles for private
Subject to the provisions
companies limited by shares as set out in the Companies (Model Memoranda and
Articles) Regulations 2014 (hereinafter called the "Model Articles") shall apply to the
Company as if the Model Articles were set out in full in these Articles. Where there is
any conflict between the provisions of these Articles and the provisions of the Model
Articles, the provisions of these Articles shall prevail and the conflicting provisions of
the Model Articles shall be deemed to have been amended, varied and/or deleted
accordingly as the context requires.
3. The Company is aa private company limited by shares within the meaning of the Act
and accordingly the following provisions shall have effect, namely:
(a) The right to allot, issue and Transfer the Shares of the Company is restricted
in manner hereinafter provided;
(b) There shall be no restriction on the maximum number of Members of the
Company unless the Act so provides;
(c) Any invitation to the public to subscribe for any Shares or debentures or
debenture stock of the Company is hereby prohibited;
(d) The Company shall not have power to issue share warrants to bearer;
(e) The Company does not keep, and is prohibited from keeping, its Register
outside Gibraltar;
(f) The Company shall be permitted to issue fractional shares in accordance with
the provisions of the Act.
Shares
Allotment and Issue of Shares
4. Subject entirely to the provisions of Articles 3, 5, 7, 8 and 10 hereof, the Shares of
the Company shall be allotted and issued by the Directors at such times and upon
such terms and conditions and either at aa premium or at par as the Directors shall in
their sole and absolute discretion think fit and with full power to give to any
Shareholder to whom such Shares are issued the call of any Shares either at par or at
aa premium during such time and for such consideration as the Directors in their sole
and absolute discretion think fit.
fit.
Authorised Share Capital
5. The authorised share capital of the company is USD 300,002,000.00 (three hundred
million and two thousand United States Dollars) divided into 2,000 (two thousand)
Class A non-convertible redeemable shares of USD 1.00 (one United States Dollar)
each (the "Class A Shares") and 300,000,000 (three hundred million) Class BB non-
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redeemable and non-convertible ordinary shares of USD 1.00 (one United States
Dollar) each (the "Class B B Shares"). The rights attaching to the Class A Shares and
the Class BB Shares shall be as provided in these Articles.
Rights attaching to the Shares
6. The rights and restrictions attaching to the Shares shall be as follows:
Class A Shares:
The Class A Shares of the Company shall confer upon the holders thereof the following
rights and entitlements and shall be subject to the following restrictions:
6.1. Prior to the occurrence of the Class B B Trigger Event and prior to the Class A
Redemption Event, the Class A Shares shall confer upon the holders thereof the
following rights and entitlements and shall be subject to the following restrictions:
6.1.1
6.1.1 the right to vote, either in person or by proxy, at any general meeting of the
Shareholders or on any consensual written resolution of Shareholders;
6.1.2 the right to participate pari passu with all issued Class A Shares in the net
profits and distributions of the Company available for distribution from time
to time; and
6.1.3 the right to participate pan
pari passu with all issued Class A Shares in the
distribution of the surplus assets of the Company on its liquidation.
6.2. After the occurrence of the Class B Trigger Event and prior to the occurrence of the
Class A Redemption Event, the Class A Shares shall confer upon the holders thereof
the following rights and entitlements and shall be subject to the following
restrictions:
6.2.1
6.2.1 the right to vote, either in person or by proxy, at any general meeting of the
Shareholders or on any consensual written resolution of Shareholders;
6.2.2 the right to participate pari passu with all issued Shares in the net profits and
distributions of the Company available for distribution EXCEPT THAT after the
Class BB Trigger Event, such participation shall be on the basis that one (1)
Class A Share shall equal one hundred and thirty-three thousand five hundred
{133,500) Class B
(133,500) B Shares; and
6.2.3 the right, on the Company's liquidation, to participate pari passu with all
other issued classes of Shares (based on the share capital of such Shares) in
the distribution of the assets of the Company up to the amount of the
Company's share capital, but the Class A Shares are not entitled to participate
in the distribution of any surplus assets of the Company remaining after the
distribution of the Company's paid-up share capital on its liquidation.
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6.3. Voting Rights of Class A Shares.
Each Class A Share carries one hundred and thirty-three thousand five hundred
(133,500) votes per Class A Share on aa poll on all matters submitted to the vote or
consent of the Shareholders.
6.4. Occurrence of the Class A Redemption Event
Upon the occurrence of the Class A Redemption Event, the Class A Shares shall
confer upon the holders thereof the following rights and entitlements and shall be
subject to the following restrictions:
6.4.1
6.4.1 no right to vote, either in person or by proxy, at any general meeting of the
Shareholders or on any consensual written resolution of Shareholders;
6.4.2 no right to participate in any of the net profits and distributions of the
Company available for distribution; and
6.4.3 have the right, on the Company's liquidation, to participate pari passu with
all other issued classes of Shares (based on the share capital of such Shares)
in the distribution of the assets of the Company up to the amount of the
Company's share capital, but the Class A Shares are not entitled to participate
in the distribution of any surplus assets of the Company remaining after the
distribution of the Company's paid-up share capital on its liquidation.
6.5 Redemption of Class A Shares.
As soon as practicable following the occurrence of the Class A Redemption Event
(but not before), the Company shall redeem all of the Class A Shares in issue at aa
redemption price equal to their par value of USD 1.00 per Share in accordance with
the following provisions:
(i) The redemption price for the Class A Shares shall be paid in United
States Dollars at aa price of USD 1.00 per Class A Share and the
redemption proceeds shall be paid by the Company to the holders of
the Class A Shares to be redeemed subject to delivery by the holder(s)
of the Class A Shares to the Company of the share certificate(s) in
respect of such Class A Shares (but the redemption of the Class A
Shares shall not be delayed by virtue of any delay in the delivery to the
Company of the share certificate(s) that relate to the Class A Shares);
(ii) If any holder of the Class A Shares to be redeemed shall fail or refuse
to surrender the share certificate(s) for such Class A Shares or shall fail
or refuse to accept the redemption price payable in respect of their
redemption, such money shall be retained and held by the Company
in bare trust for such holder but no interest shall accrue on such
monies and the Company shall have no further obligation or liability
howsoever arising or of whatsoever nature to the holder of such Class
A Shares;
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(iii) After the occurrence of the Class A Redemption Event, the holders of
Class A Shares shall not be entitled to vote those Shares or to receive
any distributions on account of those Shares, other than the right to
the payment from the Company of the redemption price as aforesaid
for such Class A Shares;
(iv) To the greatest extent permitted by the Act, the Class A Shares shall
only be redeemed out of the profits of the Company available for
distribution;
(v) Subject to the provisions of the Act, as soon as practicable following
the occurrence of the Class A Redemption Event (but not before) all of
the Class A Shares shall be redeemed by the Company and cancelled
. on redemption and the capital of the Company shall be reduced
accordingly by the par value of the Class A Shares. No Class A Shares
will be reissued by the Company after the occurrence of the Class A
Redemption Event; and
(vi) All of the provisions of the Act relating to the redemption of the Class
A Shares and the creation of or increase where requisite of aa capital
redemption reserve fund shall be duly observed.
6.6. Prior to the occurrence of the Class B Trigger Event, no Shares other than Class A
Shares shall confer upon the holders thereof the following rights and entitlements:
6.6.1
6.6.1 any right to vote at any meeting of the Shareholders or to receive notice
thereof or to vote on any consensual written resolution of Shareholders;
6.6.2 any right to participate in the net profits and distributions of the
Company; and
6.6.3 any right to participate in the distribution of the surplus assets of the
Company on its liquidation.
Class B
B Shares:
The Class BB Shares of the Company shall confer upon the holders thereof the following
rights and entitlements and shall be subject to the following restrictions:
6.7. B Shares shall not confer
Prior to the occurrence of the Class B Trigger Event, Class B
upon the holders thereof any of the following rights and entitlements:
6.7.1 any right to vote at any meeting of the Shareholders or to receive notice
6.7.1
thereof or to vote on any consensual written resolution of Shareholders;
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6.7.2 any right to participate in the net profits and distributions of the
Company; and
6.7.3 any right to participate in the distribution of the surplus assets of the
Company on its liquidation.
6.8. After the occurrence of the Class B
B Trigger Event, the Class B Shares shall confer
upon the holders thereof the following rights and entitlements and shall be subject
to the following restrictions:
6.8.1
6.8.1 the right to vote, either in person or by proxy, at any general or special
meeting of the Shareholders or on any consensual written resolution of
Shareholders, with each Class B
B Share carrying one (1) vote per Class B
B Share
on aa poll;
6.8.2 the right to participate pari passu with all other issued Shares in the net
profits and distributions of the Company; EXCEPT THAT such participation
shall be on the basis that one (1) Class A Share shall equal one hundred and
thirty-three thousand five hundred (133,500) Class B
B Shares; and
6.8.3 the right, on the Company's liquidation, to participate pari passu with all
other issued classes of Shares (based on the paid-up par value of such Shares)
in the distribution of the assets of the Company up to the amount of the
Company's paid-up share capital, and the right to participate pari passu with
all other issued Class B
B Shares in the distribution of the surplus assets of the
Company remaining after distribution of paid-up share capital on its
liquidation.
Alteration of the Company's share capital
6.9 Article 52 of the Model Articles shall only apply to the Company to the extent that
the provisions of Article 93 are complied with.
Variation or abrogation of rights attaching to the Class B
B Shares
6.10 If prior to the occurrence of the Class BB Trigger Event the holders of the Class A
Shares adopt any resolution to amend these Articles that would vary or abrogate the
rights, entitlements or restrictions attached to the Class BB Shares in such aa manner
that, under Gibraltar law, such amendment requires the separate approval (either by
agreement in writing or by way of voting as aa class) of the holders of the Class BB
Shares notwithstanding that the holders of the Class B B Shares are not otherwise
entitled to vote, then the resolution adopted by the holders of the Class A Shares
shall be entirely subject to and conditional upon the prior approval (whether by
agreement in writing or by way of voting as aa class) of the holders of at least aa simple
majority of the Class BB Shares in issue. After the occurrence of the Class B B Trigger
Event, if the requisite shareholders acting in accordance with Article 93 adopt any
resolution to amend these Articles that would vary or abrogate the rights,
entitlements or restrictions attached to the Class BB Shares in such aa manner that,
under Gibraltar law, such amendment requires the separate approval (either by
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NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023
agreement in writing or by way of voting as a class) of the holders of the Class BB
Shares, then such resolution shall be entirely subject to and conditional upon the
prior approval (whether by agreement in writing or by way of voting as aa class) of the
holders of aa simple majority of the Class BB Shares in issue.
Transfer Restrictions
7. No Share in the Company may be allotted, issued or Transferred to any Person
without the prior written approval of the Board. Any allotment, issue or Transfer of aa
Share without the prior approval of the Board shall be void. The Directors shall not
decline to register any Transfer of any Share whether or not it is aa fully paid Share if
it is aa Permitted Transfer or if such Transfer is permitted pursuant to Article 10(b)
l0(b)
but, otherwise and subject to the provisions of these Articles the Directors may in
their sole and absolute discretion and without assigning any reason therefor decline
to register any Transfer of any Share whether or not it is a fully paid Share. The
provisions of article 38(3) of the Model Articles shall not apply to these Articles.
8. Save as provided herein and save for any Permitted Transfer, any Transfer of Shares
by aa Shareholder (which for the avoidance
avoid·ance of doubt shall include the Transfer
following an Obligatory Transfer Event in accordance with Articles 25 to 32
(inclusive)) or the allotment and issue of Shares by the Company, shall in each case
be subject to the provisions of Articles 7 to 32 (inclusive).
9. Any purported allotment, issue or Transfer of Shares not specifically permitted by
these Articles shall be void, shall not be deemed as an action duly authorised by the
Board and/or by the relevant Shareholders (as the case may be) and, consequently,
shall not operate to confer or Transfer any interest or title to, in or over such Shares
to the purported allottee or transferee (as the case may be). The Company and any
Shareholder shall be permitted to bring proceedings in the courts of Gibraltar to
enforce the provisions of these Articles, including obtaining a declaration that any
purported allotment, issue or Transfer of Shares not specifically permitted under
these Articles is invalid.
10. Subject to the order of any court of competent jurisdiction being recognised and
enforced in Gibraltar, for such time as one or more Permitted Transferees directly or
indirectly legally or beneficially own any Voting Shares then in issue that entitle them
to cast at least a majority (being 50% plus one) of the maximum number of votes
then entitled to be cast by the holders of all Voting Shares then in issue:
(a) except as provided in Article 10(b)
l0(b) below, only Permitted Transfers shall be
permitted by the Board and by the Shareholders;
(b) a Transfer of Shares to aa Person that is not a Permitted Transferee
shall be approved by the Board and by the Shareholders if the Shareholders
holding Voting Shares who are then entitled to cast at least 90% (ninety
percent) of the maximum number of votes then entitled to be cast by the
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NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023
holders of all Voting Shares in issue at the time of the proposed Transfer to a
Person that is not aa Permitted Transferee agree to such Transfer in writing;
(c) except as provided in Article 10(d)
l0(d) and subject to Article 11
11 below, Shares
shall only be allotted and issued to Permitted Transferees; and
(d) Shares may be Transferred or allotted and issued to aa Person that is not a
Permitted Transferee if the Shareholders holding Voting Shares who are then
entitled to cast at least 90% (ninety percent) of the maximum number of
votes then entitled to be cast by the holders of all Voting Shares in issue at
the time of the proposed Transfer or allotment and issue of Shares to aa
Person that is not a Permitted Transferee agree
Preview
FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 EXHIBIT A FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 11111111111111 * 5 5 5 0 5 * 'D' Filed pursuant to Section 26 of the Companies Act THE COMPANIES ACT C,'') L.) 1 DEC 2019 COMPANY LIMITED BY SHARES . 1 .1.1 \ '`") ARTICLES OF ASSOCIATION OF I11 IIIIIIIII Il ~~ 111 CO I ~I ~ IIIIIII IIIIII II IIIIII IIIII IIIII IIIII IIIII IIII CO-55505-2417855 -55505-2417855 Ill~~~ lllll llll /111 SNBNY HOLDINGS L LIMITED MITED SNBNY HOLDINGS LIMITED Document 034 (10) AMENDED ARTICLES OF ASSOCIATION 1. In the interpretation and construction of these Articles, unless there is something in the subject or context inconsistent therewith, the capitalised words hereinafter contained shall bear the meanings set opposite to them respectively: The "Company" shall mean: "SNBNY Holdings Limited" The "Act" shall mean the Companies Act 2014 (such Act and every provision thereof as amended or re-enacted from time to time) of Gibraltar, and every other Act for the time being in force in Gibraltar concerning companies with limited liability necessarily affecting this Company; "Allocation Notice" shall have the meaning ascribed to it in Article 19; "Applicant" shall have the meaning ascribed to it in Article 19; These "Articles" or "Presents" shall mean the present articles of association of the Company and all supplementary, amended or substituted articles of association of the Company for the time being in force; PROVIDED that any reference herein to "D shall mean the articles of association of the Company "these Articles marked "D"" 1111 adopted by special resolution of the Shareholders on December 4th, 4th , 2019; "Board" shall mean the board of Directors of the Company; "Business Day" shall mean aa day on which retail banks are generally open for business in Gibraltar and in New York; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 "Cessation of Disability" shall have the following meaning: (a) With respect to JYS, it shall mean such time as two physicians, each of whom is aa faculty member in the area of neurology at any premier medical school in any part of the world, shall have certified that JYS is competent and able to act prudently and effectively in financial affairs; and (b) With respect to any individual other than JYS, it shall mean, in the case of Disability pursuant to clause (2)(a) of the definition of "Disability", such time as aa court shall have determined that the individual is competent, or, in the case of Disability pursuant to clause (2)(b) of the definition of "Disability", such time as two physicians, each of whom is aa faculty member in the area of neurology at aa premier medical school in any part of the world, shall have certified that the individual is competent and able to act prudently and effectively in financial affairs. "Class A Redemption Event" shall mean the later to occur of (x) the death of JYS and (y) the death of VS; "Class A Shares" shall mean any or all (as the context may require) of the Class A non-convertible redeemable shares of the Company that are designated as Class A Shares having aa nominal value of USD 1.00 (one United States Dollar) in the capital of the Company conferring on the holders thereof the rights, entitlements and restrictions more particularly set out in these Articles marked "D"; B Shares" shall mean any or all (as the context may require) of the Class B "Class B B non-redeemable and non-convertible ordinary shares of the Company having aa nominal value of USD 1.00 (one United States Dollar) in the capital of the Company conferring on the holders thereof the rights, entitlements and restrictions more particularly set out in these Articles marked "D"; B Trigger Event" shall mean the death of JYS; "Class B "Consideration" shall have the meaning ascribed to it in Article 19; "Control" shall mean with respect to aa Person (other than an individual) (a) the direct or indirect ownership of more than 50% of the voting securities of such Person; or (b) the right to appoint, or cause the appointment of, more than 50% of the members of the board of directors (or similar governing body) of such Person; or (c) the right to manage, or direct on aa discretionary basis the general management and policies of such Person or the assets of such Person; or (d) the right to receive, directly or indirectly, aa simple majority of the proceeds arising from: (i) (i) any declaration of aa dividend; or (ii) aa distribution arising in the course of winding up, whether solvent or insolvent; or (iii) any return of capital; and FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 the expressions "Controlled" 11 "Controlling shall be construed accordingly and, aa "Controlled and "Controlling" 11 "Change of Control" occurs if aa Person who Controls any body corporate ceases to do so or if another Person acquires Control of it; "Descendant" of a person means (i) any lineal descendant of that person; (ii) any legally adopted child of that person or of any lineal descendant of that person; or (iii) any legally adopted child or lineal descendant of aa person described in the preceding sub-clause (ii); Relative means (i) the spouse of JYS; or (ii) any Descendant of JYS (and "Designated Relative" 11 "Designated Relatives" shall mean any one or more of them); "Directors" shall mean all of the directors for the time being of the Company (or where the context so admits, the board of directors of the Company and, "Director" shall mean any one of them); "Disability or "Disabled" "Disability" 11 "Disabled shall mean, 11 (1) With respect to JYS, it shall mean such time as five physicians, each of whom is a faculty member in the area of neurology at a premier medical school, two of whom have their primary medical practice in the United States, one of whom has his or her primary medical practice in the United Kingdom, one of whom has his or her primary medical practice in Brazil, and one of whom has his or her primary medical practice in a state that is part of the Western European Union at the date hereof (for which purpose a state shall be deemed a part of the Western European Union if it is aa member, observer or associate member (but not an associate partner) of the Western European Union), shall have certified that JYS is incompetent or otherwise unable to act prudently and effectively in financial affairs, and such certification shall have been solicited by VS and aa majority of the members of the class of individuals consisting of the children of JYS who are then living and not Disabled or, if VS is not then living or is Disabled, such certification shall have been solicited by a majority of the members of the class of individuals consisting of the children of JYS who are then living and not Disabled. (2) With respect to any individual other than JYS, it shall mean such time as either: (a) aa committee, guardian, conservator or similar fiduciary shall have been appointed for such individual pursuant to a judicial or similar proceeding, or (b) three physicians, each of whom is aa faculty member in the area of neurology at a premier medical school in any part of the world, shall have certified that the individual is incompetent or otherwise unable to act prudently and effectively in financial affairs. Notwithstanding the foregoing, a person shall not be deemed to be Disabled or suffering from aa Disability at any time after a Cessation of Disability shall have occurred with respect to all the Disabilities that such person has suffered. FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 "Dividend" shall include bonus; "Encumbrance" includes any interest or equity of any Person (including, without limitation, any right to acquire, option, right of pre emption, right of conversion, title retention, right of set-off) or any charge, debenture, mortgage, pledge, lien, assignment, hypothecation, or any other encumbrance, priority, security agreement, security interest or arrangement of whatever nature over or howsoever created or arising in the relevant property or any agreement to create any one or more of the foregoing; "extraordinary resolution" shall mean any resolution adopted by aa majority of not less than three-fourths of the votes cast at an extraordinary general meeting by the holders of the Voting Shares; "Expert" shall mean the Person appointed in accordance with Articles 33 to 43 (inclusive) to determine the Fair Value of OTE Shares; "Fair Value" shall mean the value of any Shares determined in accordance with Article 28; "Family Trust" means aa trust, foundation or similar settlement established exclusively for the benefit of JYS and/or any one or more Designated Relatives, provided that aa charitable trust or foundation or other charitable organisation may be aa contingent remainderman or default beneficiary of any such trust, foundation or similar settlement if neither JYS nor his spouse is alive and if there are no living Descendants of JYS; "First Offer Period" shall have the meaning ascribed to it in Article 13; "general meeting" shall mean any meeting of the holders of the Voting Shares; "Initial Surplus Sale Shares" shall have the meaning ascribed to it in Article 15 of these Articles; "Issue Notice" shall mean the notice issued by the Board to the Shareholders who own Voting Shares in accordance with Article 11; "Issue Price" shall mean, in respect of any Unallotted Un allotted Share, any consideration or the subscription price paid (or agreed to be paid) (as applicable) in respect of that Unallotted Share; "JYS" shall mean Joseph Yacoub Safra of Residence des Alpes, appt N°2, Route des Zires 16, 3963 Crans-Montana, Valais, Switzerland and being the sole registered holder and absolute beneficial owner of all of the issued Shares in the Company as at the date that these Articles marked "D" were adopted as the articles of association of the Company; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 "Members" or "Shareholders" shall mean the duly registered holders from time to time of the Shares in the capital of the Company; "Notice of Obligatory Transfer Event" shall have the meaning ascribed to it in Article 25; "Obligatory Transfer Event" shall mean, in relation to aa Shareholder (or the beneficial owner of the Shares held by that Shareholder), the occurrence of any event specified in Article 24 that applies to that Shareholder (or the beneficial owner of the Shares held by that Shareholder); "Obligatory Transfer Notice" shall mean the notice issued by the Company to those Shareholders who own Voting Shares and who are not the subject of an Obligatory Transfer Event in accordance with Article 31; "ordinary resolution" shall mean any resolution adopted by aa simple majority of the votes cast at aa general meeting by the holders of the Voting Shares; "OTE Shareholder" shall have the meaning ascribed to it in Article 24; "OTE Shares" shall mean all of the Shares either registered in the name of aa Shareholder who is subject to an Obligatory Transfer Event or beneficially owned by aa Person who is subject to an Obligatory Transfer Event; subject to the provisions of these Articles, such OTE Shares shall be offered for sale to the other Shareholders by the Board in accordance with Articles 25 to 32 (inclusive); "Permitted Transfer" means any of the following: (i) aa Transfer of Shares that is approved in writing by JYS, in his sole discretion, while he is alive and not Disabled; (ii) aa Transfer of Shares to aa Permitted Transferee after the death of JYS or after the occurrence and during the continuance of the Disability of JYS; and (iii) aa Transfer of such number of Class B B Shares held by or on behalf of aa Descendant to such Descendant's spouse upon the Descendant's death to the extent that such Transfer is required by the applicable laws governing the minimum inheritance rights of such spouse upon such Descendant's death. "Permitted Transferee" means JYS and/or aa Designated Relative and/or aa Family Trust; "Person" shall, where the context so permits, be construed as aa reference to any natural person, firm, company, corporation, government, state or agency of aa state or any association or partnership (whether or not having separate legal personality) or any recognised legal entity or any one or more of the foregoing; "Proposed Transferee" shall mean the allottee named in the Issue Notice, or the proposed transferee named in the Obligatory Transfer Notice (as the case may be); The "Register" shall mean the register of members of the Company to be kept by the Company pursuant to the Act; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 "Registered Office" shall mean the registered office from time to time of the Company; "Respective Proportions" shall mean, in relation to aa Shareholder at any time, the proportion which the number of votes that may be cast by the Voting Shares then held by that Shareholder bears to the total number of votes that may be cast by all Voting Shares in issue; but, only in the context of Articles 13 to 18 (inclusive), shall mean, in relation to aa Shareholder, the proportion which the number of votes that may be cast by the Voting Shares then held by that Shareholder bears to the total number of votes that may be cast by the Voting Shares then held by the other Shareholders who received an Issue Notice or an Obligatory Transfer Notice pursuant to the provisions of Articles 13 to 15 (inclusive); "Second Offer Period" shall have the meaning ascribed to it in Article 16; "Second Surplus Shares" shall have the meaning ascribed to it in Article 18; "Shares" shall mean the authorised or issued (as the context requires) shares of any class from time to time in the share capital of the Company; "Significant Shareholder" shall mean, at any time, any Shareholder who owns Voting Shares that entitle such Shareholder to cast, while VS is alive, at least 7.2% (seven and two- tenths of aa percent) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares then in issue, and after VS is no longer alive, at least 8.5% (eight and five-tenths of aa percent) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares then in issue; "special resolution" shall mean any resolution adopted by aa majority of not less than three-fourths of the votes cast at aa general meeting by the holders of the Voting Shares; "Transfer" means any allotment, issue, gift, transmission, transfer, sale, disposal, conveyance, assignment, Encumbrance or other transfer, whether voluntary or involuntary, of aa legal, beneficial or other interest in aa Share, or the creation of an interest or trust over that Share, or whether by operation of law or otherwise (and "Transferred" and "Transferring" shall be construed accordingly as the context requires); provided that for purposes of these Articles, aa Transfer shall not be deemed to include aa Transmission of Shares until such time as the death, bankruptcy, succession, divorce, marriage or such event having similar effect to the foregoing of aa Shareholder (or the beneficial owner of the Shares held by that Shareholder) occurs or the law otherwise operates to Transmit Shares; "Transfer Shares" shall mean the OTE Shares and/or Unallotted Shares as the context may require; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 "Transmission" means the transmission of Shares as aa consequence of the death, bankruptcy, succession, divorce, marriage or such event having similar effect to the foregoing, of the registered holder or beneficial owner of Shares or otherwise by operation of law (and "Transmit" shall be construed accordingly); "Unallotted Share" shall mean those unallotted and unissued Shares in the authorised share capital of the Company which are the subject of an Issue Notice and which are being offered for subscription to the Shareholders by the Board in accordance with these Articles; "Voting Shares" shall mean (x) prior to the occurrence of the Class B B Trigger Event, the Class A Shares only, (y) after the occurrence of the Class B B Trigger Event and prior to the occurrence of the Class A Redemption Event, the Class A Shares and the Class BB Shares, and (z) after the occurrence of the Class A Redemption Event, the Class BB Shares only; "VS" shall mean Vicky Safra of Residence des Alpes, appt N°2, Route des Zires 16, 3963 Crans-Montana, Valais, Switzerland and being the spouse of JYS as at the date that these Articles marked "D" were adopted as the articles of association of the Company; Unless the context otherwise requires, words (including defined terms) importing the singular number shall include the plural and vice versa, and words (including defined terms) importing the masculine shall include the feminine and neuter and vice versa; Unless the context otherwise requires, aa reference to an "Article" is to an article of these Articles; Unless aa contrary indication appears, any reference to these Articles is aa reference to these Articles as amended, varied, supplemented and replaced from time to time; The expressions "hereunder", "herein", "hereof" and "hereto" and similar expressions shall be construed as references to these Articles as a whole and not limited to the particular Article in which the relevant reference appears; Any reference to an enactment, statute or statutory provision includes a reference to such enactment, statute or statutory provision as from time to time amended extended or re-enacted; and If any Article hereof (or part of any Article) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other Articles shall remain in force. If any invalid, unenforceable or illegal Article (or part thereof) would be valid, enforceable or legal if some part of it were deleted or modified, the Article shall apply with whatever modification is necessary to give effect to the intention of JYS as at the date that these Articles marked "D" were adopted as the articles of association of the Company. FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 2. prov1s1ons hereinafter contained the model articles for private Subject to the provisions companies limited by shares as set out in the Companies (Model Memoranda and Articles) Regulations 2014 (hereinafter called the "Model Articles") shall apply to the Company as if the Model Articles were set out in full in these Articles. Where there is any conflict between the provisions of these Articles and the provisions of the Model Articles, the provisions of these Articles shall prevail and the conflicting provisions of the Model Articles shall be deemed to have been amended, varied and/or deleted accordingly as the context requires. 3. The Company is aa private company limited by shares within the meaning of the Act and accordingly the following provisions shall have effect, namely: (a) The right to allot, issue and Transfer the Shares of the Company is restricted in manner hereinafter provided; (b) There shall be no restriction on the maximum number of Members of the Company unless the Act so provides; (c) Any invitation to the public to subscribe for any Shares or debentures or debenture stock of the Company is hereby prohibited; (d) The Company shall not have power to issue share warrants to bearer; (e) The Company does not keep, and is prohibited from keeping, its Register outside Gibraltar; (f) The Company shall be permitted to issue fractional shares in accordance with the provisions of the Act. Shares Allotment and Issue of Shares 4. Subject entirely to the provisions of Articles 3, 5, 7, 8 and 10 hereof, the Shares of the Company shall be allotted and issued by the Directors at such times and upon such terms and conditions and either at aa premium or at par as the Directors shall in their sole and absolute discretion think fit and with full power to give to any Shareholder to whom such Shares are issued the call of any Shares either at par or at aa premium during such time and for such consideration as the Directors in their sole and absolute discretion think fit. fit. Authorised Share Capital 5. The authorised share capital of the company is USD 300,002,000.00 (three hundred million and two thousand United States Dollars) divided into 2,000 (two thousand) Class A non-convertible redeemable shares of USD 1.00 (one United States Dollar) each (the "Class A Shares") and 300,000,000 (three hundred million) Class BB non- FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 redeemable and non-convertible ordinary shares of USD 1.00 (one United States Dollar) each (the "Class B B Shares"). The rights attaching to the Class A Shares and the Class BB Shares shall be as provided in these Articles. Rights attaching to the Shares 6. The rights and restrictions attaching to the Shares shall be as follows: Class A Shares: The Class A Shares of the Company shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.1. Prior to the occurrence of the Class B B Trigger Event and prior to the Class A Redemption Event, the Class A Shares shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.1.1 6.1.1 the right to vote, either in person or by proxy, at any general meeting of the Shareholders or on any consensual written resolution of Shareholders; 6.1.2 the right to participate pari passu with all issued Class A Shares in the net profits and distributions of the Company available for distribution from time to time; and 6.1.3 the right to participate pan pari passu with all issued Class A Shares in the distribution of the surplus assets of the Company on its liquidation. 6.2. After the occurrence of the Class B Trigger Event and prior to the occurrence of the Class A Redemption Event, the Class A Shares shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.2.1 6.2.1 the right to vote, either in person or by proxy, at any general meeting of the Shareholders or on any consensual written resolution of Shareholders; 6.2.2 the right to participate pari passu with all issued Shares in the net profits and distributions of the Company available for distribution EXCEPT THAT after the Class BB Trigger Event, such participation shall be on the basis that one (1) Class A Share shall equal one hundred and thirty-three thousand five hundred {133,500) Class B (133,500) B Shares; and 6.2.3 the right, on the Company's liquidation, to participate pari passu with all other issued classes of Shares (based on the share capital of such Shares) in the distribution of the assets of the Company up to the amount of the Company's share capital, but the Class A Shares are not entitled to participate in the distribution of any surplus assets of the Company remaining after the distribution of the Company's paid-up share capital on its liquidation. FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 6.3. Voting Rights of Class A Shares. Each Class A Share carries one hundred and thirty-three thousand five hundred (133,500) votes per Class A Share on aa poll on all matters submitted to the vote or consent of the Shareholders. 6.4. Occurrence of the Class A Redemption Event Upon the occurrence of the Class A Redemption Event, the Class A Shares shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.4.1 6.4.1 no right to vote, either in person or by proxy, at any general meeting of the Shareholders or on any consensual written resolution of Shareholders; 6.4.2 no right to participate in any of the net profits and distributions of the Company available for distribution; and 6.4.3 have the right, on the Company's liquidation, to participate pari passu with all other issued classes of Shares (based on the share capital of such Shares) in the distribution of the assets of the Company up to the amount of the Company's share capital, but the Class A Shares are not entitled to participate in the distribution of any surplus assets of the Company remaining after the distribution of the Company's paid-up share capital on its liquidation. 6.5 Redemption of Class A Shares. As soon as practicable following the occurrence of the Class A Redemption Event (but not before), the Company shall redeem all of the Class A Shares in issue at aa redemption price equal to their par value of USD 1.00 per Share in accordance with the following provisions: (i) The redemption price for the Class A Shares shall be paid in United States Dollars at aa price of USD 1.00 per Class A Share and the redemption proceeds shall be paid by the Company to the holders of the Class A Shares to be redeemed subject to delivery by the holder(s) of the Class A Shares to the Company of the share certificate(s) in respect of such Class A Shares (but the redemption of the Class A Shares shall not be delayed by virtue of any delay in the delivery to the Company of the share certificate(s) that relate to the Class A Shares); (ii) If any holder of the Class A Shares to be redeemed shall fail or refuse to surrender the share certificate(s) for such Class A Shares or shall fail or refuse to accept the redemption price payable in respect of their redemption, such money shall be retained and held by the Company in bare trust for such holder but no interest shall accrue on such monies and the Company shall have no further obligation or liability howsoever arising or of whatsoever nature to the holder of such Class A Shares; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 (iii) After the occurrence of the Class A Redemption Event, the holders of Class A Shares shall not be entitled to vote those Shares or to receive any distributions on account of those Shares, other than the right to the payment from the Company of the redemption price as aforesaid for such Class A Shares; (iv) To the greatest extent permitted by the Act, the Class A Shares shall only be redeemed out of the profits of the Company available for distribution; (v) Subject to the provisions of the Act, as soon as practicable following the occurrence of the Class A Redemption Event (but not before) all of the Class A Shares shall be redeemed by the Company and cancelled . on redemption and the capital of the Company shall be reduced accordingly by the par value of the Class A Shares. No Class A Shares will be reissued by the Company after the occurrence of the Class A Redemption Event; and (vi) All of the provisions of the Act relating to the redemption of the Class A Shares and the creation of or increase where requisite of aa capital redemption reserve fund shall be duly observed. 6.6. Prior to the occurrence of the Class B Trigger Event, no Shares other than Class A Shares shall confer upon the holders thereof the following rights and entitlements: 6.6.1 6.6.1 any right to vote at any meeting of the Shareholders or to receive notice thereof or to vote on any consensual written resolution of Shareholders; 6.6.2 any right to participate in the net profits and distributions of the Company; and 6.6.3 any right to participate in the distribution of the surplus assets of the Company on its liquidation. Class B B Shares: The Class BB Shares of the Company shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.7. B Shares shall not confer Prior to the occurrence of the Class B Trigger Event, Class B upon the holders thereof any of the following rights and entitlements: 6.7.1 any right to vote at any meeting of the Shareholders or to receive notice 6.7.1 thereof or to vote on any consensual written resolution of Shareholders; FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 6.7.2 any right to participate in the net profits and distributions of the Company; and 6.7.3 any right to participate in the distribution of the surplus assets of the Company on its liquidation. 6.8. After the occurrence of the Class B B Trigger Event, the Class B Shares shall confer upon the holders thereof the following rights and entitlements and shall be subject to the following restrictions: 6.8.1 6.8.1 the right to vote, either in person or by proxy, at any general or special meeting of the Shareholders or on any consensual written resolution of Shareholders, with each Class B B Share carrying one (1) vote per Class B B Share on aa poll; 6.8.2 the right to participate pari passu with all other issued Shares in the net profits and distributions of the Company; EXCEPT THAT such participation shall be on the basis that one (1) Class A Share shall equal one hundred and thirty-three thousand five hundred (133,500) Class B B Shares; and 6.8.3 the right, on the Company's liquidation, to participate pari passu with all other issued classes of Shares (based on the paid-up par value of such Shares) in the distribution of the assets of the Company up to the amount of the Company's paid-up share capital, and the right to participate pari passu with all other issued Class B B Shares in the distribution of the surplus assets of the Company remaining after distribution of paid-up share capital on its liquidation. Alteration of the Company's share capital 6.9 Article 52 of the Model Articles shall only apply to the Company to the extent that the provisions of Article 93 are complied with. Variation or abrogation of rights attaching to the Class B B Shares 6.10 If prior to the occurrence of the Class BB Trigger Event the holders of the Class A Shares adopt any resolution to amend these Articles that would vary or abrogate the rights, entitlements or restrictions attached to the Class BB Shares in such aa manner that, under Gibraltar law, such amendment requires the separate approval (either by agreement in writing or by way of voting as aa class) of the holders of the Class BB Shares notwithstanding that the holders of the Class B B Shares are not otherwise entitled to vote, then the resolution adopted by the holders of the Class A Shares shall be entirely subject to and conditional upon the prior approval (whether by agreement in writing or by way of voting as aa class) of the holders of at least aa simple majority of the Class BB Shares in issue. After the occurrence of the Class B B Trigger Event, if the requisite shareholders acting in accordance with Article 93 adopt any resolution to amend these Articles that would vary or abrogate the rights, entitlements or restrictions attached to the Class BB Shares in such aa manner that, under Gibraltar law, such amendment requires the separate approval (either by FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 agreement in writing or by way of voting as a class) of the holders of the Class BB Shares, then such resolution shall be entirely subject to and conditional upon the prior approval (whether by agreement in writing or by way of voting as aa class) of the holders of aa simple majority of the Class BB Shares in issue. Transfer Restrictions 7. No Share in the Company may be allotted, issued or Transferred to any Person without the prior written approval of the Board. Any allotment, issue or Transfer of aa Share without the prior approval of the Board shall be void. The Directors shall not decline to register any Transfer of any Share whether or not it is aa fully paid Share if it is aa Permitted Transfer or if such Transfer is permitted pursuant to Article 10(b) l0(b) but, otherwise and subject to the provisions of these Articles the Directors may in their sole and absolute discretion and without assigning any reason therefor decline to register any Transfer of any Share whether or not it is a fully paid Share. The provisions of article 38(3) of the Model Articles shall not apply to these Articles. 8. Save as provided herein and save for any Permitted Transfer, any Transfer of Shares by aa Shareholder (which for the avoidance avoid·ance of doubt shall include the Transfer following an Obligatory Transfer Event in accordance with Articles 25 to 32 (inclusive)) or the allotment and issue of Shares by the Company, shall in each case be subject to the provisions of Articles 7 to 32 (inclusive). 9. Any purported allotment, issue or Transfer of Shares not specifically permitted by these Articles shall be void, shall not be deemed as an action duly authorised by the Board and/or by the relevant Shareholders (as the case may be) and, consequently, shall not operate to confer or Transfer any interest or title to, in or over such Shares to the purported allottee or transferee (as the case may be). The Company and any Shareholder shall be permitted to bring proceedings in the courts of Gibraltar to enforce the provisions of these Articles, including obtaining a declaration that any purported allotment, issue or Transfer of Shares not specifically permitted under these Articles is invalid. 10. Subject to the order of any court of competent jurisdiction being recognised and enforced in Gibraltar, for such time as one or more Permitted Transferees directly or indirectly legally or beneficially own any Voting Shares then in issue that entitle them to cast at least a majority (being 50% plus one) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares then in issue: (a) except as provided in Article 10(b) l0(b) below, only Permitted Transfers shall be permitted by the Board and by the Shareholders; (b) a Transfer of Shares to aa Person that is not a Permitted Transferee shall be approved by the Board and by the Shareholders if the Shareholders holding Voting Shares who are then entitled to cast at least 90% (ninety percent) of the maximum number of votes then entitled to be cast by the FILED: NEW YORK COUNTY CLERK 06/26/2023 10:20 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/26/2023 holders of all Voting Shares in issue at the time of the proposed Transfer to a Person that is not aa Permitted Transferee agree to such Transfer in writing; (c) except as provided in Article 10(d) l0(d) and subject to Article 11 11 below, Shares shall only be allotted and issued to Permitted Transferees; and (d) Shares may be Transferred or allotted and issued to aa Person that is not a Permitted Transferee if the Shareholders holding Voting Shares who are then entitled to cast at least 90% (ninety percent) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares in issue at the time of the proposed Transfer or allotment and issue of Shares to aa Person that is not a Permitted Transferee agree