DATED 23 SEPTEMBER 2004
(1) ASA (BERMUDA) LIMITED
(2) XXXXXXX CORPORATE SERVICES (BERMUDA) LTD.
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FORM OF CORPORATE ADMINISTRATIVE SERVICES AGREEMENT
(NO DIRECTOR)
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XXXXXXX
Corporate Services
CONTENTS
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1 Definitions and Interpretations..........................................1
2 Provision of Services and Instructions...................................2
3 Fees for Services........................................................2
4 Covenants by the Company.................................................2
5 Representations by the Administrator.....................................3
6 Permitted disclosures....................................................3
7 Administrator acting for other clients...................................4
8 Liability of Administrator and Indemnity.................................4
9 Termination..............................................................5
10 Settlement of Disputes...................................................6
11 Miscellaneous............................................................7
Schedule 1...........................................................10
SCHEDULE 2...........................................................11
SCHEDULE 3...........................................................12
THIS AGREEMENT is made (in triplicate) as of the 23rd day of September 2004 (the
"Commencement Date")
BETWEEN:
1. ASA (BERMUDA) LIMITED of Canon's Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX 00,
Xxxxxxx (the"Company"); and
2. XXXXXXX CORPORATE SERVICES (BERMUDA) LTD. of Canon's Court, 00 Xxxxxxxx
Xxxxxx, Xxxxxxxx XX 12, Bermuda (the"Administrator").
WHEREAS:
The Company wishes to be provided with corporate administrative services by the
Administrator and the Administrator has agreed to provide such services upon and
subject to the terms of this Agreement.
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Agreement and the Schedules hereto, where the context so
admits:
"BENEFICIARIES" means the Officers and or the Administrator's servants
or agents;
"COMPANIES ACTS" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Company;
"GROUP" means the law Group of Xxxxxxx Xxxxxxxx Xxxxxx;
"OFFICER" means any individual or company whose services as a
Secretary (including any temporary or assistant Secretary) or Resident
Representative (including any temporary or assistant Resident
Representative) or Signatory are provided by the Administrator and
includes any Officer so provided who has ceased to act;
"PRINCIPAL" means the persons or entities identified in Schedule 1
hereto;
"SERVICES" means corporate administrative services made available to
companies by the Administrator described in Schedule 2 hereto; and
"SIGNATORY" means any individual whose services are provided by the
Administrator authorised by the Company to act as signatory on any
bank accounts established by the Company.
1.2 Words importing the singular shall include the plural and vice versa
and the masculine gender shall include the feminine and neuter
genders.
1.3 The headings are inserted for convenience and shall not affect the
construction of this document.
2 PROVISION OF SERVICES AND INSTRUCTIONS
2.1 The Administrator hereby agrees to supply the Services to the Company
from the Commencement Date.
2.2 The Administrator and the Officers are expressly authorised, in
rendering the Services and acting as Officers, to act on and rely upon
the instructions or advice received from the Company (or the
Principal), or any person they bona fide believe to be duly authorised
by the Company or the Principal, in all matters concerning the Company
and its business. Such instructions or advice may be communicated
orally or in writing, and with or without authentication.
Notwithstanding the foregoing, the Officers and the Administrator may,
at any time, do or refrain from doing any act if they shall, in their
absolute discretion, consider it proper to do so in accordance with
their duty to the Company, or the laws of any country having
jurisdiction over the Company.
3 FEES FOR SERVICES
In consideration of the Administrator's agreement to provide the
Services and appoint the Officers and in consideration of the
acceptance by the Officers of such designation, the Company agrees to
pay the Administrator, on written request, disbursements incurred in
connection with the provision of Services and fees, such fees to
consist of a basic minimum annual charge together with such additional
amounts as the time spent (at its rates from time to time in force)
and the responsibility undertaken justify. The initial basic minimum
annual charge is hereby agreed at BD$4,500.00 per annum for the
Company's financial year and is subject to review from time to time.
The basic minimum annual charge shall be paid by the Company on
invoice receipt. If the Administrator submits further invoices based
upon time spent and/or responsibility undertaken such invoices also
shall be paid by the Company on invoice receipt. The Administrator
shall have no obligation to supply any of the Services if the Company
is in default concerning fee payment.
In connection with the provision of the Services hereunder, the
Administrator, the Company and the Officers shall be entitled to
request the professional advice or services of the Group at any time
when such advice or services may reasonably be required. The costs of
the Group shall be borne by the Company or as otherwise agreed in
writing between the Group and the Company.
4 COVENANTS BY THE COMPANY
4.1 The Company hereby covenants with the Administrator that from the
Commencement Date:
4.1.1 it shall at all times and in a timely manner provide, or cause
to be provided, to the Administrator such information, records
and financial statements as are necessary in order to permit
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the Administrator to provide the Services and to ensure that
the Company is in compliance with the Companies Acts including
without limiting the generality of the foregoing that
specified in Schedule 3 hereto;
4.1.2 it shall at all times provide the Administrator with complete
and accurate information relating to the business and affairs
of the Company which, in the opinion of the Administrator or
the Company, is necessary to enable the Officers to perform
their duties as Officers to the standard imposed by the
Companies Acts and the general law;
4.1.3 neither the Administrator nor any Officer shall be required to
incur any expense in the discharge of their respective
obligations or make any payment on behalf of the Company, save
in circumstances where they have received sufficient funds in
advance to meet such expense; and
4.1.4 it shall at all times and in a timely manner obtain all advice
to ensure its activities and affairs are carried out so as to
comply with all applicable laws, including but not limited to
taxation laws and money laundering laws.
5 REPRESENTATIONS BY THE ADMINISTRATOR
5.1 The Administrator hereby represents to the Company that:
5.1.1 while the Company is in existence, and the Administrator is
serving pursuant to the terms of this Agreement, the
Administrator will:
5.1.1.1 retain copies of correspondence of the Company on
files which will be placed in storage on an annual
basis;
5.1.1.2 retain original documents sent to it to retain for
the Company; and
5.1.1.3 to the extent the Administrator receives copies of
financial statements, bank accounts or other
information or documents relating to the Company,
that it will retain such information and records;
5.2 subject only to clause 5.3 and 5.4 after six (6) years from the
termination of this Agreement, all records, contracts or materials
retained by the Administrator with regard to the Company will be
destroyed;
5.3 if the Company shall be wound-up, or shall be struck off the Register
of Companies in Bermuda, after twenty (20) years from such event, the
records, contracts or materials retained by the Administrator with
regard to the Company will be destroyed;
5.4 if the Company shall be discontinued as a Bermuda company or shall
amalgamate with a company incorporated outside of Bermuda not
administered by the Administrator after 6 years from such event, the
records, contracts or materials retained by the Administrator with
regard to the Company will be destroyed.
6 PERMITTED DISCLOSURES
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6.1 The Company accepts and acknowledges the obligation of the
Administrator or the Officers to make filings with and disclosure to
the Bermuda Monetary Authority, the Registrar of Companies of Bermuda
or the Minister of Finance of Bermuda pursuant to the provisions of
Bermuda law, including the Companies Acts.
6.2 Save as aforesaid, none of the parties hereto shall, unless compelled
so to do by any court of competent jurisdiction, either before or
after the termination of this Agreement disclose to any person (other
than a director, officer, auditor, or accountant, insurer or legal
adviser of the party or legal adviser of an insurer to the party) not
authorised by the relevant party to receive the same, any information
relating to such party or to the affairs of such party of which the
party disclosing the same shall have become possessed during the
period of this Agreement and each party shall use its best endeavours
to prevent any such disclosures as aforesaid.
6.3 The Company hereby authorises the Administrator to give staff members
of the Group (including without limitation, attorneys and secretaries)
unlimited access to the corporate records of the Company in cases
where (a) the Administrator, the Company and the Officers request the
professional advice or services of the Group in connection with the
provision of the Services hereunder; and (b) the Group has been
instructed to render professional advice in connection with the
commercial transactions into which the Company proposes to enter.
7 ADMINISTRATOR ACTING FOR OTHER CLIENTS
The Company hereby acknowledges and accepts that the Administrator
provides corporate administrative services (including the services of
Officers) to a large number of companies, some of which may be in
competition with the Company.
8 LIABILITY OF ADMINISTRATOR AND INDEMNITY
8.1 Neither the Administrator nor any of the Beneficiaries shall be liable
to the Company, or to any other person in respect of anything done or
omitted to be done by the Administrator or the Beneficiaries in
carrying out their duties under this Agreement or their duties as
Officers of the Company unless there is fraud or dishonesty on the
part of the Administrator or the Beneficiaries. The Company covenants
to indemnify and keep indemnified the Administrator and each of the
Beneficiaries against any and all liabilities, costs, claims, demands,
proceedings, charges, actions, suits or expenses of whatsoever kind or
character that may be incurred or suffered by any of them howsoever
arising (other than by reason of fraud or dishonesty on the part of
the Administrator or any of the Beneficiaries) in connection with the
provision of the Services or the performance of this Agreement.
8.2 Neither the Administrator nor any Beneficiaries shall be required to
take any legal action unless fully indemnified to its or their
reasonable satisfaction by the Company for all costs and liabilities
likely to be incurred or suffered by the Administrator or the
Beneficiaries as the case may be and if the Company requires the
Administrator or any such Beneficiary in any capacity to take any
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action which in the opinion of the Administrator or any such
Beneficiaries might make the Administrator or any such Beneficiaries
as agent liable for the payment of money or liable in any other way,
the Administrator or any such Beneficiaries shall be and be kept
indemnified by the Company in any reasonable amount and form
satisfactory to it as a prerequisite to take such action.
8.3 The indemnities given by this Agreement shall cover all reasonable
costs and expenses payable by the Administrator and any of the
Beneficiaries or any of them in connection with any claims.
8.4 To the extent that the Administrator or any of the Beneficiaries are
entitled to claim an indemnity pursuant to this Agreement in respect
of amounts paid or discharged by the Administrator or any of the
Beneficiaries, these indemnities shall take effect as an obligation of
the Company to reimburse the person making such payment or effecting
such discharge.
8.5 The parties acknowledge that the Group owes no duties under this
Agreement to and shall not be liable to any party hereto or to any
other person in connection with the obligations of any party to or the
performance by any party of this Agreement.
8.6 The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under any statute, agreement, the Bye-laws of the
Company or otherwise, and shall continue after the termination of this
Agreement.
9 TERMINATION
9.1 This Agreement may be terminated by the Company or the Administrator
giving not less than three (3) months written notice (or such shorter
notice as the receiving party may agree in writing to accept) provided
that this Agreement may be terminated forthwith by notice in writing:
9.1.1 given by the party not in breach in the event of failure to
rectify a breach within 30 days of the party in breach
receiving written notice of the breach; or
9.1.2 given by either party in the event that a winding-up (or the
equivalent in another jurisdiction) of the Administrator or
the Company has commenced or either of the parties has
discontinued under the Companies Acts or that a receiver is
appointed over any assets of either party.
9.2 Termination shall be without prejudice to any rights or liabilities of
either party hereto arising prior to or in respect of any act or
omission occurring prior to termination.
9.3 In the event of termination in accordance with the provisions of this
Agreement, the amount of the basic minimum annual charge referred to
in Clause 3 hereof shall be pro-rated to the date of termination
(after taking into account such additional amounts, if any, as the
time spent and the responsibility undertaken during the relevant
period immediately prior to termination justify).
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9.4 In the event of termination in accordance with the provisions of this
Agreement, the Company and the Administrator shall procure that all
such acts are done as may be necessary to give effect to such
termination and the Company shall secure and the Administrator shall,
subject to payment of all amounts due to it hereunder, co-operate in
the appointment of a substitute administrator and substitute officers
as circumstances may require.
9.5 In the event of termination in accordance with the provisions of this
Agreement, but only after payment of all amounts due to it under the
terms of this Agreement, the Administrator shall hand over to the
Company or as it may direct all books of account, correspondence and
records relating to the affairs of the Company which are the property
of the Company and which are in its possession.
9.6 A copy of the termination notice shall be sent to the Principal by the
party terminating this Agreement.
10 SETTLEMENT OF DISPUTES
10.1 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
in accordance with either the Arbitration Xxx 0000 or the Bermuda
International Conciliation and Arbitration Xxx 0000 as amended,
extended or re-enacted from time to time whichever is appropriate and
subject only to clause 10.2 and provided that:
10.1.1 There shall be one arbitrator whose appointment shall be
agreed between the parties within seven days of the service of
an arbitration notice;
10.1.2 In the absence of agreement such arbitrator will be appointed
by the chairman for the time being of the Bermuda
International Business Association;
10.1.3 Within fourteen days of the appointment of an arbitrator the
claimant will serve its points of claim upon the respondent;
10.1.4 Within fourteen days thereafter the respondent shall serve its
defence (if any);
10.1.5 Within seven days thereafter there shall be a preliminary
hearing held by the arbitrator to settle any further
directions for hearing and the arbitrator shall at that time
appoint a hearing date;
10.1.6 The arbitration shall be held in Bermuda and the governing law
and procedures shall be those of Bermuda;
10.1.7 The award of the arbitrator shall be final and binding upon
the parties;
10.1.8 The arbitrator shall publish a written reasoned award within
fourteen days of the substantive arbitration hearing; and
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10.1.9 A copy of each arbitration document shall be sent to the
Principal by the party which prepared the document.
10.2 The Administrator may take proceedings in any jurisdiction against the
Company for the recovery of monies due to it.
11 MISCELLANEOUS
11.1 This Agreement represents the entire understanding between the parties
and supersedes all prior agreements and undertakings whether written
or oral concerning the subject matter of this Agreement. This
Agreement may only be amended by agreement in writing signed by the
parties hereto.
11.2 Any notice required to be given hereunder shall be in writing and may
be served on any party by electronic mail, facsimile or by being left
at or sent by registered post to the registered office for the time
being of the Administrator and to the registered office for the time
being of the Company and any notice given by post shall be deemed to
have been served at the expiration of five working days of the
recipient after the date upon the registration receipt provided by the
postal authority (and in proving such service it shall be sufficient
to prove that the envelope containing the notice was properly
addressed and sent by registered post) and in the case of electronic
mail and facsimile shall be deemed to have been served twelve working
hours of the recipient after despatch.
Contemporaneously with such service, a copy of the document shall be
transmitted by facsimile to the following address (or to such other
address as shall be notified in writing by one party to the other for
the purpose):
(a) If to the Company:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
X.X.X.
Attention: R. Xxxxxxx Xxxxxx
Fax: (000) 000 0000
(b) If to the Administrator:
Xxxxxxx Corporate Services (Bermuda) Ltd.
Canon's Court
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Managing Director
Fax: (000) 000 0000.
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11.3 This Agreement shall be governed by and construed in accordance with
Bermuda law excluding any conflict of law rules that would refer the
matter to be decided to the laws of another jurisdiction.
11.4 This Agreement shall be binding upon and enure for benefit of the
successors of the parties but shall not be assignable.
11.5 Nothing in this Agreement shall be construed or have effect as
constituting any relationship of employer and employee between the
Beneficiaries and the Company.
11.6 The invalidity or unenforceability of any provision or part of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and this
Agreement shall continue in full force and effect except for any such
invalid or unenforceable provision, which shall be deemed replaced by
such valid or enforceable provision the content of which is as close
as is permissible to that of the invalid or unenforceable provision.
11.7 This Agreement may be executed in counterparts and it shall not be
necessary that each counterpart be signed by each party hereto so long
as each party shall have executed and delivered a counterpart.
11.8 The failure of either party to this Agreement to object to or to take
affirmative action with respect to any conduct of either party which
is in violation of the terms of this Agreement shall not be construed
as a waiver of the violation or breach, or of any future violation,
breach or wrongful conduct.
IN WITNESS WHEREOF the Company and the Administrator have executed this
Agreement as of the day and the year first above written.
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SIGNED by for and on behalf of )
XXXXXXX CORPORATE SERVICES (BERMUDA) LTD. )
in the presence of: )
) _______________________________
SIGNED by for and on behalf of )
ASA (BERMUDA) LIMITED )
in the presence of: ) _______________________________
Witness
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Schedule 1
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PRINCIPAL
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NAMES ADDRESSES AND CONTACT DETAILS
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Xxxxxx Xxxxx Xxxxxxxxx Xxxxx 0 Xx. Xxxxxx'x Xxxx
Xxxxxxx, Xxx Xxxx 00000
X.X.X.
Tel: (000) 000 0000 (or 2478)
Fax: (000) 000 0000
R. Xxxxxxx Xxxxxx Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxxxx Xxx.
Xxxxxxxxxx XX 00000
X.X.X.
Tel: (000) 000 0000
Fax: (000) 000 0000
E-mail: xxxxxxx@xx.xxx
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SCHEDULE 2
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SERVICES MADE AVAILABLE BY THE ADMINISTRATOR
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(i) The provision of summary information with respect to changes in
Bermuda law materially affecting the statutory obligations of the
Company.
(ii) Provision of an individual ordinarily resident in Bermuda to act as
Resident Representative and the Administrator acting as Assistant
Resident Representative to discharge the duties set out in the
Companies Acts.
(iii) Provision of an individual ordinarily resident in Bermuda to act as
Company Secretary and the Administrator acting as an Assistant Company
Secretary.
(iv) Provision of the Registered Office of the Company.
(v) Maintaining the Share Register and the Register of Directors and
Officers of the Company.
(vi) Keeping the Company's Minute Book.
(vii) Attending meetings, taking, drafting, preparing and circulating
minutes of meetings of the Company and its Board, unless otherwise
requested in writing by the Company.
(viii) Provision of boardroom and other support facilities for meetings held
in Bermuda.
(ix) The filing of statutory returns by the Company and documents required
under the Companies Acts in Bermuda, provided always that the
requisite information to enable the Administrator to do so is
available and the Administrator has received all relevant payments.
(x) Liaising with the auditors of the Company generally and in respect of
the preparation of annual and semi-annual financial statements.
(xi) Maintaining copies of the quarterly accounts and of any audited
financial statements of the Company required to be kept in Bermuda.
(xii) Handling the day to day affairs of the Company in Bermuda (other than
taxation and accounting affairs), including signing or countersigning
cheques by any Signatory, dealing with correspondence, faxes and
telephone calls.
(xiii) Liaising with those authorised to represent the Company and its
shareholders and with the Company's bankers, managers (where
applicable) and accountants.
(xiv) Soliciting the advice of the Group on legal matters connected with the
Company.
(xv) Such other services as may be agreed in writing between the parties.
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SCHEDULE 3
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DOCUMENTATION TO BE PROVIDED BY THE COMPANY
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(i) quarterly management accounts in respect of the Company, duly
certified by an accountant or auditor or director or officer of the
Company pursuant to the requirements of Section 83 of the Companies
Acts, to be supplied within thirty (30) days of the end of each
financial quarter; and
(ii) the financial statements of the Company in respect of each financial
year prepared in accordance with the requirements of section 84 of the
Companies Acts together with the auditors' report in respect thereof,
to be supplied not less than fourteen (14) days before the date of the
Company's annual general meeting or no later than six (6) months after
the end of the financial year whichever shall be the earlier date
(provided that if the audit is waived in accordance with the
requirements of the Companies Acts, management accounts for the
Company shall be supplied, duly certified by an accountant or director
or officer of the Company not less than fourteen (14) days before the
date of the Company's annual general meeting or no later than six (6)
months after the end of the financial year whichever shall be the
earlier date); and
(iii) copies of the minutes of all meetings of the members of the Company,
whether general meetings or class meetings and minutes of directors'
meetings.
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