<PAGE>
EXHIBIT 3.1
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
MEMORANDUM & ARTICLES OF ASSOCIATION
OF
CHINA VENTURES LIMITED
<PAGE>
MEMORANDUM & ARTICLES OF ASSOCIATION
OF
CHINA VENTURES LIMITED
INDEX
MEMORANDUM OF ASSOCIATION
<TABLE>
CLAUSE
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<S> <C>
1 Name
2 Registered Office
3 Objects
4 Authority
5 Shareholders' Liability
6 Authorized Share Capital
7 Registration as Exempted Company
ARTICLES OF ASSOCIATION
CLAUSE
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1-3 Definitions and Formation
4-5 Certificates for Shares
6-7 Issue of Shares
8-10 Transfer of Shares
11 Redeemable Shares
12-13 Variation of Rights of Shares
14 Commission on Sale of Shares
15 Non-Recognition of Trusts
16-19 Lien on Shares
20-24 Call on Shares
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25-28 Forfeiture of Shares
29 Registration of Empowering Instruments
30-32 Transmission of Shares
33 Amendment of Memorandum of Association, Change of
Location of Registered Office and Alteration of
Capital
34-36 Closing Register of Members or Fixing Record Date
37-38 General Meeting
39-40 Notice of General Meetings
41-52 Proceedings at General Meetings
53-58 Votes of Members
59-64 Proxies
65-73 Directors
74 Alternate Directors
75-80 Powers and Duties of Directors
81 Management
82-83 Managing Directors
84-93 Proceedings of Directors
94 Vacation of Office of Director
95-96 Appointment and Removal of Directors
97 Presumption of Assent
98 Seal
99 Officers
100-107 Dividends, Distributions and Reserve
108 Capitalization
109-111 Books of Account
112-115 Audit
116-120 Notices
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121-122 Winding Up
123 Indemnity
124 Financial Year
125 Amendments of Articles
126 Transfer by way of Continuation
127-135 Bearer Shares
</TABLE>
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THE COMPANIES LAW
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
CHINA VENTURES LIMITED
1. The name of the Company is CHINA VENTURES LIMITED.
2. The Registered Office of the Company shall be at the offices
of Trident Trust Company (Cayman) Limited, Fourth Floor, One Capital Place, P.O.
Box 847, Grand Cayman, Cayman Islands, British West Indies or at such other
place as the Directors may from time to time decide.
3. The objects for which the Company is established are
unrestricted and shall include, but without limitation, the following:
(i) (a) To carry on the business of an investment
company and to act as promoters and entrepreneurs and to carry on business as
financiers, capitalists, concessionaires, merchants, brokers, traders, dealers,
agents, importers and exporters and to undertake and carry on and execute all
kinds of investment, financial, commercial, mercantile, trading and other
operations.
(b) To carry on whether as principals, agents or
otherwise howsoever the business of realtors, developers, consultants, estate
agents or managers, builders, contractors, engineers, manufacturers, dealers in
or vendors of all types of property including services.
(ii) To exercise and enforce all rights and powers
conferred by or incidental to the ownership of any shares, stock, obligations or
other securities including without prejudice to the generality of the foregoing
all such powers of veto or control as may be conferred by virtue of the holding
by the Company of some special proportion of the issued or nominal amount
thereof, to provide managerial and other executive, supervisory and consultant
services for or in relation to any company in which the Company is interested
upon such terms as may be thought fit.
(iii) To purchase or otherwise acquire, to sell, exchange,
surrender, lease, mortgage, charge, convert, turn to account, dispose of and
deal with real and personal property and rights of all kinds and, in particular,
mortgages, debentures, produce, concessions, options, contracts, patents,
annuities, licenses, stocks, shares, bonds, policies, book debts, business
concerns, undertakings, claims, privileges and choses in action of all kinds.
(iv) To subscribe for, conditionally or unconditionally,
to underwrite, issue on commission or otherwise, take, hold, deal in and convert
stocks, shares and securities of all kinds and to enter into partnership or into
any arrangement for sharing profits, reciprocal concessions or cooperation with
any person or company and to promote and aid in promoting, to constitute, form
or organize any company, syndicate or partnership of any kind, for the purpose
of acquiring and undertaking any property and liabilities of the Company or of
advancing, directly or indirectly, the objects of the Company or for any other
purpose which the Company may think expedient.
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(v) To stand surety for or to guarantee, support or
secure the performance of all or any of the obligations of any person, firm or
company whether or not related or affiliated to the Company in any manner and
whether by personal covenant or mortgage, charge or lien upon the whole or any
part of the undertaking, property and assets of the Company, both present and
future, including its uncalled capital or by any such method and whether or not
the Company shall receive valuable consideration therefor.
(vi) To engage in or carry on any other lawful trade,
business or enterprise which may at any time appear to the Directors of the
Company capable of being conveniently carried on in conjunction with any of the
aforementioned businesses or activities or which may appear to the Directors or
the Company likely to be profitable to the Company.
In the interpretation of this Memorandum of Association in general and of this
Clause 3 in particular no object, business or power specified or mentioned shall
be limited or restricted by reference to or inference from any other object,
business or power, or the name of the Company, or by the juxtaposition of two or
more objects, businesses or powers and that, in the event of any ambiguity in
this clause or elsewhere in this Memorandum of Association, the same shall be
resolved by such interpretation and construction as will widen and enlarge and
not restrict the objects, businesses and powers of and exercisable by the
Company.
4. Except as prohibited or limited by the Companies Law (Cap.
22), the Company shall have full power and authority to carry out any object and
shall have and be capable of from time to time and at all times exercising any
and all of the powers at any time or from time to time exercisable by a natural
person or body corporate in doing in any part of the world whether as principal,
agent, contractor or otherwise whatever may be considered by it necessary for
the attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereon, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in the manner set
out in the Articles of Association of the Company, and the power to do any of
the following acts or things, viz:
to pay all expenses of and incidental to the promotion, formation and
incorporation of the Company; to register the Company to do business in
any other jurisdiction; to sell, lease or dispose of any property of
the Company; to draw, make, accept, endorse, discount, execute and
issue promissory notes, debentures, bills of exchange, bills of lading,
warrants and other negotiable or transferable instruments; to lend
money or other assets and to act as guarantors; to borrow or raise
money on the security of the undertaking or on all or any of the assets
of the Company including uncalled capital or without security; to
invest monies of the Company in such manner as the Directors determine;
to promote other companies; to sell the undertaking of the Company for
cash or any other consideration; to distribute assets in specie to
Members of the Company; to make charitable or benevolent donations; to
pay pensions or gratuities or provide other benefits in cash or kind to
Directors, officers, employees, past or present and their families; to
carry on any trade or business and generally to do all acts and things
which, in the opinion of the Company or the Directors, may be
conveniently or profitably or usefully acquired and dealt with, carried
on, executed or done by the Company in connection with the business
aforesaid PROVIDED THAT the Company shall only carry on the businesses
for which a licence is required under the laws of the Cayman Islands
when so licensed under the terms of such laws.
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5. The liability of each member is limited to the amount from
time to time unpaid on such member's shares.
6. The share capital of the Company is US$50,000.00 divided into
50,000,000 ordinary shares of a nominal or par value of US$0.001 each with the
power for the Company, insofar as is permitted by law, to redeem or purchase any
of its shares and to increase or reduce the said capital subject to the
provisions of the Companies Law (Revised) (Cap.22) and the Articles of
Association and to issue any part of its capital, whether original, redeemed or
increased with or without any preference, priority or special privilege or
subject to any postponement of rights or to any conditions or restrictions and
so that, unless the conditions of issue shall otherwise expressly declare, every
issue of shares whether declared to be preference or otherwise shall be subject
to the powers hereinbefore contained.
7. If the Company is registered as exempted, its operations will
be carried on subject to the provisions of Section 192 of the Companies Law
(Revised) (Cap. 22) and, subject to the provisions of the Companies Law
(Revised) (Cap.22) and the Articles of Association, it shall have the power to
register by way of continuation as a body corporate limited by shares under the
laws of any jurisdiction outside the Cayman Islands and to be deregistered in
the Cayman Islands.
WE, the undersigned, are desirous of being formed into a company in pursuance of
this Memorandum of Association and we agree to take the number of shares in the
capital of the Company set opposite our name.
DATED the 9th day of December, 1999.
SIGNATURE, ADDRESSES and NUMBER OF SHARES
DESCRIPTION OF SUBSCRIBERS TAKEN BY EACH
/s/ 1 ordinary share
--------------------------------------------
Trident Nominees (Cayman) Ltd
(Corporation)
P.O. Box 847, Grand Cayman
/s/
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Witness to the above signature
I, Ronnie William Anglin, Assistant Registrar of Companies in and for the Cayman
Islands DO HEREBY CERTIFY that this is a true and correct copy of the Memorandum
of Association of this Company duly incorporated on the 10th day of December,
1999.
/s/ Ronnie William Anglin
---------------------------------------
ASSISTANT REGISTRAR OF COMPANIES
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Registered and Filed
As No.: 94901 this 10th
day of December, 1999.
/s/
----------------------------
Asst. Registrar of Companies
Cayman Islands
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
CHINA VENTURES LIMITED
1. In these Articles Table A in the Schedule to the Statute does
not apply and, unless there be something in the subject or context inconsistent
therewith,
"Articles" means these Articles as originally framed or as
from time to time altered by Special Resolution.
"The Auditors" means the persons for the time being performing
the duties of auditors of the Company.
"The Company" means the above named Company.
"Debenture" means debenture stock, mortgages, bonds and any
other such securities of the Company whether constituting a charge on the assets
of the Company or not.
"The Directors" means the directors for the time being of the
Company.
"Dividend" includes bonus.
"Member" shall bear the meaning ascribed to it in Section 37
of the Statute.
"Month" means calendar month.
"Paid-up" means paid-up and/or credited as paid-up.
"The Registered Office" means the registered office for the
time being of the Company.
"Seal" means the common seal of the Company and includes every
duplicate seal.
"Secretary" includes an Assistant Secretary and any person
appointed to perform the duties of Secretary of the Company.
<PAGE>
"Share" includes a fraction of a share.
"Special Resolution" has the same meaning as in the Statute
and includes a resolution as described in Section 60(1)(b) of the Statute.
"Statute" means the Companies Law of the Cayman Islands as
amended and every statutory modification or re-enactment thereof for the time
being in force.
"Written" and "In Writing" include all modes of representing
or reproducing words in visible form.
Words importing the singular number only include the plural
number and vice-versa.
Words importing the masculine gender only include the feminine
gender.
Words importing persons only include corporations.
2. The business of the Company may be commenced as soon after
incorporation as the Directors shall see fit, notwithstanding that part only of
the shares may have been allotted.
3. The Directors may pay, out of the capital or any other monies
of the Company, all expenses incurred in or about the formation and
establishment of the Company including the expenses of registration.
CERTIFICATES FOR SHARES
4. Certificates representing shares of the Company shall be in
such form as shall be determined by the Directors. Such certificates shall be
under seal. All certificates for shares shall be consecutively numbered or
otherwise identified and shall specify the shares to which they relate. The name
and address of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered in the register of
members of the Company. All certificates surrendered to the Company for transfer
shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled. The Directors may authorize certificates to be issued with the seal
and authorized signature(s) affixed by some method or system of mechanical
process.
5. Notwithstanding Article 4 of these Articles, if a share
certificate be defaced, lost or destroyed, it may be renewed on payment of a fee
of one dollar (US$1.00) or such less sum and on such terms (if any) as to
evidence and indemnity and the payment of the expenses incurred by the Company
in investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
6. Subject to the provisions, if any, in that behalf in the
Memorandum of Association and to any direction that may be given by the Company
in general meeting and without prejudice to any special rights previously
conferred on the holders of existing shares, the Directors may allot, issue,
grant options over or otherwise dispose of shares of the Company (including
fractions of a share) with or without preferred, deferred or other special
rights or restrictions, whether in regard to dividend, voting, return of capital
or otherwise and to such persons, at such times and on such other terms as they
think proper.
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7. The Company shall maintain a register of its members and every
person whose name is entered as a member in the register of members shall be
entitled without payment to receive within two months after allotment or
lodgement of transfer (or within such other period as the conditions of issue
shall provide) one certificate for all his shares or several certificates each
for one or more of his shares upon payment of fifty cents (US$0.50) for every
certificate after the first or such less sum as the Directors shall from time to
time determine provided that in respect of a share or shares held jointly by
several persons the Company shall not be bound to issue more than one
certificate and delivery of a certificate for a share to one of the several
joint holders shall be sufficient delivery to all such holders.
TRANSFER OF SHARES
8. The instrument of transfer of any share shall be in writing
and shall be executed by or on behalf of the Transferor and the Transferor shall
be deemed to remain the holder of a share until the name of the Transferee is
entered in the register in respect thereof.
9. The Directors may in their absolute discretion decline to
register any transfer of shares without assigning any reason therefor. If the
Directors refuse to register a transfer they shall notify the Transferee within
two months of such refusal.
10. The registration of transfers may be suspended at such time
and for such periods as the Directors may from time to time determine, provided
always that such registration shall not be suspended for more than forty-five
days in any year.
REDEEMABLE SHARES
11. (a) Subject to the provisions of the Statute and the
Memorandum of Association, shares may be issued on the terms that they are, or
at the option of the Company or the holder are, to be redeemed on such terms and
in such manner as the Company, before the issue of the shares, may by Special
Resolution determine.
(b) Subject to the provisions of the Statute and the
Memorandum of Association, the Company may purchase its own shares (including
fractions of a share), including any redeemable shares, provided that the manner
of purchase has first been authorized by the Company in general meeting and may
make payment therefor in any manner authorized by the Statute, including out of
capital.
VARIATION OF RIGHTS OF SHARES
12. If at any time the share capital of the Company is divided
into different classes of shares, the rights attached to any class (unless
otherwise provided by the terms of issue of the shares of that class) may,
whether or not the Company is being wound-up, be varied with the consent in
writing of the holders of three-fourths of the issued shares of that class, or
with the sanction of a special resolution passed at a general meeting of the
holders of the shares of that class.
The provisions of these Articles relating to general meetings
shall apply to every such general meeting of the holders of one class of shares
except that the necessary quorum shall be one (1) person holding or representing
by proxy at least one-third of the issued shares of the class and that any
holder of shares of the class present in person or by proxy may demand a poll.
13. The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of
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that class, be deemed to be varied by the creation or issue of further shares
ranking pari passu therewith.
COMMISSION ON SALE OF SHARES
14. The Company may in so far as the Statute from time to time
permits pay a commission to any person in consideration of his subscribing or
agreeing to subscribe whether absolutely or conditionally for any shares of the
Company. Such commissions may be satisfied by the payment of cash or the
lodgement of fully or partly paid-up shares or partly in one way and partly in
the other. The Company may also on any issue of shares pay such brokerage as may
be lawful.
NON-RECOGNITION OF TRUSTS
15. No person shall be recognized by the Company as holding any
share upon any trust and the Company shall not be bound by or be compelled in
any way to recognize (even when having notice thereof) any equitable,
contingent, future, or partial interest in any share, or any interest in any
fractional part of a share, or (except only as is otherwise provided by these
Articles or the Statute) any other rights in respect of any share except an
absolute right to the entirety thereof in the registered holder.
LIEN ON SHARES
16. The Company shall have a first and paramount lien and charge
on all shares (whether fully paid-up or not) registered in the name of a member
(whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by such
member or his estate, either alone or jointly with any other person, whether a
member or not, but the Directors may at any time declare any share to be wholly
or in part exempt from the provisions of this Article. The registration of a
transfer of any such share shall operate as a waiver of the Company's lien (if
any) thereon. The Company's lien (if any) on a share shall extend to all
dividends or other monies payable in respect thereof.
17. The Company may sell, in such manner as the Directors think
fit, any shares on which the Company has a lien, but no sale shall be made
unless a sum in respect of which the lien exists is presently payable, nor until
the expiration of fourteen days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the lien exists as is
presently payable, has been given to the registered holder or holders for the
time being of the share, or the person, of which the Company has notice,
entitled thereto by reason of his death or bankruptcy.
18. To give effect to any such sale the Directors may authorize
some person to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares comprised in any such transfer,
and he shall not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or invalidity in
the proceedings in reference to the sale.
19. The proceeds of such sale shall be received by the Company and
applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject to a like
lien for sums not presently payable as existed upon the shares before the sale)
be paid to the person entitled to the shares at the date of the sale.
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CALL ON SHARES
20. (a) The Directors may from time to time make calls upon
the members in respect of any monies unpaid on their shares (whether on account
of the nominal value of the shares or by way of premium or otherwise) and not by
the conditions of allotment thereof made payable at fixed terms, provided that
no call shall exceed one-fourth of the nominal value of the share or be payable
at less than one month from the date fixed for the payment of the last preceding
call, and each member shall (subject to receiving at least fourteen days notice
specifying the time or times of payment) pay to the Company at the time or times
so specified the amount called on the shares. A call may be revoked or postponed
as the Directors may determine. A call may be made payable by instalments.
(b) A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was passed.
(c) The joint holders of a share shall be jointly and
severally liable to pay all calls in respect thereof.
21. If a sum called in respect of a share is not paid before or on
a day appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the time
of actual payment at such rate not exceeding ten per cent per annum as the
Directors may determine, but the Directors shall be at liberty to waive payment
of such interest either wholly or in part.
22. Any sum which by the terms of issue of a share becomes payable
on allotment or at any fixed date, whether on account of the nominal value of
the share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a call duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest forfeiture or otherwise shall apply as if such sum had become payable
by virtue of a call duly made and notified.
23. The Directors may on the issue of shares differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
24. (a) The Directors may, if they think fit, receive from
any member willing to advance the same, all or any part of the monies uncalled
and unpaid upon any shares held by him, and upon all or any of the monies so
advanced may (until the same would but for such advances, become payable) pay
interest at such rate not exceeding (unless the Company in general meeting shall
otherwise direct) seven per cent (7%) per annum, as may be agreed upon between
the Directors and the member paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle
the member paying such sum to any portion of a dividend declared in respect of
any period prior to the date upon which such sum would, but for such payment,
become presently payable.
FORFEITURE OF SHARES
25. (a) If a member fails to pay any call or instalment of a
call or to make any payment required by the terms of issue on the day appointed
for payment thereof, the Directors may, at any time thereafter during such time
as any part of the call, instalment or payment remains unpaid, give notice
requiring payment of so much of the call, instalment or payment as is unpaid,
together with any interest which may have accrued and all expenses that have
been incurred by the Company
5
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by reason of such non-payment. Such notice shall name a day (not earlier than
the expiration of fourteen days from the date of giving of the notice) on or
before which the payment required by the notice is to be made, and shall state
that, in the event of non-payment at or before the time appointed the shares in
respect of which such notice was given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid
are not complied with, any share in respect of which the notice has been given
may at any time thereafter, before the payment required by the notice has been
made, be forfeited by a resolution of the Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the forfeited
share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed
of on such terms and in such manner as the Directors think fit and at any time
before a sale or disposition the forfeiture may be canceled on such terms as the
Directors think fit.
26. A person whose shares have been forfeited shall cease to be a
member in respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all monies which at the date of forfeiture were
payable by him to the Company in respect of the shares together with interest
thereon, but his liability shall cease if and when the Company shall have
received payment in full of all monies whenever payable in respect of the
shares.
27. A certificate in writing under the hand of one Director or the
Secretary of the Company that a share in the Company has been duly forfeited on
a date stated in the declaration shall be conclusive evidence of the fact
therein stated as against all persons claiming to be entitled to the share. The
Company may receive the consideration given for the share on any sale or
disposition thereof and may execute a transfer of the share in favor of the
person to whom the share is sold or disposed of and he shall thereupon be
registered as the holder of the share and shall not be bound to see to the
application of the purchase money, if any, nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings in reference to
the forfeiture, sale or disposal of the share.
28. The provisions of these Articles as to forfeiture shall apply
in the case of non-payment of any sum which, by the terms of issue of a share,
becomes payable at a fixed time, whether on account of the nominal value of the
share or by way of premium as if the same had been payable by virtue of a call
duly made and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
29. The Company shall be entitled to charge a fee not exceeding
one dollar (US$1.00) on the registration of every probate, letters of
administration, certificate of death or marriage, power of attorney, notice in
lieu of distringas, or other instrument.
TRANSMISSION OF SHARES
30. In case of the death of a member, the survivor or survivors
where the deceased was a joint holder, and the legal personal representatives of
the deceased where he was a sole holder, shall be the only persons recognized by
the Company as having any title to his interest in the shares, but nothing
herein contained shall release the estate of any such deceased holder from any
liability in respect of any shares which had been held by him solely or jointly
with other persons.
31. (a) Any person becoming entitled to a share in
consequence of the death or bankruptcy or liquidation or dissolution of a member
(or in any other way than by transfer) may,
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<PAGE>
upon such evidence being produced as may from time to time be required by the
Directors and subject as hereinafter provided, elect either to be registered
himself as holder of the share or to make such transfer of the share to such
other person nominated by him as the deceased or bankrupt person could have made
and to have such person registered as the transferee thereof, but the Directors
shall, in either case, have the same right to decline or suspend registration as
they would have had in the case of a transfer of the share by that member before
his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be
registered himself as holder he shall deliver or send to the Company a notice in
writing signed by him stating that he so elects.
32. A person becoming entitled to a share by reason of the death
or bankruptcy or liquidation or dissolution of the holder (or in any other case
than by transfer) shall be entitled to the same dividends and other advantages
to which he would be entitled if he were the registered holder of the share,
except that he shall not, before being registered as a member in respect of the
share, be entitled in respect of it to exercise any right conferred by
membership in relation to meetings of the Company PROVIDED HOWEVER that the
Directors may at any time give notice requiring any such person to elect either
to be registered himself or to transfer the share and if the notice is not
complied with within ninety days the Directors may thereafter withhold payment
of all dividends, bonuses or other monies payable in respect of the share until
the requirements of the notice have been complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE & ALTERATION OF CAPITAL
33. (a) Subject to and insofar as permitted by the provisions
of the Statute, the Company may, from time to time by ordinary resolution, alter
or amend its Memorandum or Articles of Association, otherwise than with respect
to the formers' name and objects, and may, without restricting the generality of
the foregoing:
(i) increase the share capital by such sum to be
divided into shares of such amount or without nominal or par value as the
resolution shall prescribe and with such rights, priorities and privileges
annexed thereto, as the Company in general meeting may determine.
(ii) consolidate and divide all or any of its
share capital into shares of larger amount than its existing shares;
(iii) by subdivision of its existing shares or any
of them divide the whole or any part of its share capital into shares of smaller
amount than is fixed by the Memorandum of Association or into shares without
nominal or par value;
(iv) cancel any shares which at the date of the
passing of the resolution have not been taken or agreed to be taken by any
person.
(b) All new shares created hereunder shall be subject to
the same provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute, the Company
may by Special Resolution change its name or alter its objects.
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(d) Without prejudice to Article 11 hereof and subject to
the provisions of the Statute, the Company may by Special Resolution reduce its
share capital and any capital redemption reserve fund.
(e) Subject to the provisions of the Statute, the Company
may by resolution of the Directors change the location of its registered office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
34. For the purpose of determining Members entitled to notice of
or to vote at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any dividend, or in order to make a determination
of Members for any other proper purpose, the Directors of the Company may
provide that the register of Members shall be closed for transfers for a stated
period but not to exceed in any case forty (40) days. If the register of Members
shall be so closed for the purpose of determining Members entitled to notice of
or to vote at a meeting of Members such register shall be so closed for at least
ten (10) days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the register of Members.
35. In lieu of or apart from closing the register of members, the
Directors may fix in advance a date as the record date for any such
determination of members entitled to notice of or to vote at a meeting of the
members and for the purpose of determining the members entitled to receive
payment of any dividend the Directors may, at or within 90 days prior to the
date of declaration of such dividend fix a subsequent date as the record date
for such determination.
36. If the register of members is not so closed and no record date
is fixed for the determination of members entitled to notice of or to vote at a
meeting of members or members entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case may
be, shall be the record date for such determination of members. When a
determination of members entitled to vote at any meeting of members has been
made as provided in this section, such determination shall apply to any
adjournment thereof.
GENERAL MEETING
37. (a) Subject to paragraph (c) hereof, the Company shall
within one year of its incorporation and in each year of its existence
thereafter hold a general meeting as its Annual General Meeting and shall
specify the meeting as such in the notices calling it. The Annual General
Meeting shall be held at such time and place as the Directors shall appoint and
if no other time and place is prescribed by them, it shall be held at the
registered office of the Company on the second Wednesday in December of each
year at ten o'clock in the morning.
(b) At these meetings the report of the Directors (if
any) shall be presented.
(c) If the Company is exempted as defined in the Statute
it may but shall not be obliged to hold an Annual General Meeting.
38. (a) The Directors may whenever they think fit, and they
shall on the requisition of members of the Company holding at the date of the
deposit of the requisition not less than one-tenth of such of the paid-up
capital of the Company as at the date of the deposit carries the right of voting
at general meetings of the Company, proceed to convene a general meeting of the
Company.
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(b) The requisition must state the objects of the meeting
and must be signed by the requisitionists and deposited at the Registered Office
of the Company and may consist of several documents in like form each signed by
one or more requisitionists.
(c) If the Directors do not within twenty-one days from
the date of the deposit of the requisition duly proceed to convene a general
meeting, the requisitionists, or any of them representing more than one-half of
the total voting rights of all of them, may themselves convene a general
meeting, but any meeting so convened shall not be held after the expiration of
three months after the expiration of the said twenty-one days.
(d) A general meeting convened as aforesaid by
requisitionists shall be convened in the same manner as nearly as possible as
that in which general meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
39. At least five days' notice shall be given of an Annual General
Meeting or any other general meeting. Every notice shall be exclusive of the
date on which it is given or deemed to be given and of the day for which it is
given and shall specify the place, the day and the hour of the meeting and the
general nature of the business and shall be given in manner hereinafter
mentioned or in such other manner if any as may be prescribed by the Company
PROVIDED that a general meeting of the Company shall, whether or not the notice
specified in this regulation has been given and whether or not the provisions of
Article 38 have been complied with, be deemed to have been duly convened if it
is so agreed:
(a) in the case of a general meeting called as an Annual
General Meeting by all the members entitled to attend and vote thereat or their
proxies; and
(b) in the case of any other general meeting by a
majority in number of the members having a right to attend and vote at the
meeting, being a majority together holding not less than seventy-five per cent
(75%) in nominal value or in the case of shares without nominal value or par
value seventy-five per cent (75%) of the shares in issue, or their proxies.
40. The accidental omission to give notice of a general meeting
to, or the non-receipt of notice of a meeting by any person entitled to receive
notice shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
41. No business shall be transacted at any general meeting unless
a quorum of members is present at the time when the meeting proceeds to
business; two (2) members present in person or by proxy shall be a quorum
provided always that if the Company has one shareholder of record the quorum
shall be that one (1) Member present in person or by proxy.
42. A resolution (including a Special Resolution) in writing (in
one or more counterparts) signed by all members for the time being entitled to
receive notice of and to attend and vote at general meetings (or being
corporations by their duly authorized representatives) shall be as valid and
effective as if the same had been passed at a general meeting of the Company
duly convened and held.
43. If within half an hour from the time appointed for the meeting
a quorum is not present, the meeting, if convened upon the requisition of
members, shall be dissolved and in any
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other case it shall stand adjourned to the same day in the next week at the same
time and place or to such other time or such other place as the directors may
determine and if at the adjourned meeting a quorum is not present within half an
hour from the time appointed for the meeting the members present shall be a
quorum.
44. The Chairman, if any, of the Board of Directors shall preside
as Chairman at every general meeting of the Company, or if there is no such
Chairman, or if he shall not be present within fifteen minutes after the time
appointed for the holding of the meeting, or is unwilling to act, the Directors
present shall elect one of their number to be Chairman of the meeting.
45. If at any general meeting no Director is willing to act as
Chairman or if no Director is present within fifteen minutes after the time
appointed for holding the meeting, the members present shall choose one of their
number to be Chairman of the meeting.
46. The Chairman may, with the consent of any general meeting duly
constituted hereunder, and shall if so directed by the meeting, adjourn the
meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place. When a general meeting is
adjourned for thirty days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting; save as aforesaid it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned general meeting.
47. At any general meeting a resolution put to the vote of the
meeting shall be decided on a show of hands unless a poll is, before or on the
declaration of the result of the show of hands, demanded by the Chairman or any
other member present in person or by proxy.
48. Unless a poll be so demanded a declaration by the Chairman
that a resolution has on a show of hands been carried, or carried unanimously,
or by a particular majority, or lost, and an entry to that effect in the
Company's Minute Book containing the Minutes of the proceedings of the meeting
shall be conclusive evidence of that fact without proof of the number or
proportion of the votes recorded in favor of or against such resolution.
49. The demand for a poll may be withdrawn.
50. Except as provided in Article 52, if a poll is duly demanded
it shall be taken in such manner as the Chairman directs and the result of the
poll shall be deemed to be the resolution of the general meeting at which the
poll was demanded.
51. In the case of an equality of votes, whether on a show of
hands or on a poll, the Chairman of the general meeting at which the show of
hands takes place or at which the poll is demanded, shall be entitled to a
second or casting vote.
52. A poll demanded on the election of a Chairman or on a question
of adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs and
any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
53. Subject to any rights or restrictions for the time being
attached to any class or classes of shares, on a show of hands every member of
record present in person or by proxy at a general
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meeting shall have one vote and on a poll every member of record present in
person or by proxy shall have one vote for each share registered in his name in
the register.
54. In the case of joint holders of record the vote of the senior
who tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of members.
55. A member of unsound mind, or in respect of whom an order has
been made by any court, having jurisdiction in lunacy, may vote, whether on a
show of hands or on a poll, by his committee, receiver, curator bonis, or other
person in the nature of a committee, receiver or curator bonis appointed by that
court, and any such committee, receiver, curator bonis or other persons may vote
by proxy.
56. No member shall be entitled to vote at any general meeting
unless he is registered as a shareholder of the Company on the record date for
such meeting nor unless all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
57. No objection shall be raised to the qualification of any voter
except at the general meeting or adjourned general meeting at which the vote
objected to is given or tendered and every vote not disallowed at such general
meeting shall be valid for all purposes. Any such objection made in due time
shall be referred to the Chairman of the general meeting whose decision shall be
final and conclusive.
58. On a poll or on a show of hands votes may be given either
personally or by proxies.
PROXIES
59. The instrument appointing a proxy shall be in writing and
shall be executed under the hand of the appointor or of his attorney duly
authorized in writing, or, if the appointor is a corporation under the hand of
an officer or attorney duly authorized in that behalf. A proxy need not be a
member of the Company.
60. The instrument appointing a proxy shall be deposited at the
Registered Office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting provided that the Chairman of the Meeting may
at his discretion direct that an instrument of proxy shall be deemed to have
been duly deposited upon receipt of telex, cable or telecopier confirmation from
the appointor that the instrument of proxy duly signed is in the course of
transmission to the Company.
61. The instrument appointing a proxy may be in any usual or
common form and may be expressed to be for a particular meeting or any
adjournment thereof or generally until revoked. An instrument appointing a proxy
shall be deemed to include the power to demand or join or concur in demanding a
poll.
62. A vote given in accordance with the terms of an instrument of
proxy shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the proxy
was executed, or the transfer of the share in respect of which the proxy is
given provided that no intimation in writing of such death, insanity, revocation
or transfer as aforesaid shall have been received by the Company at the
registered office before the commencement of the general meeting, or adjourned
meeting at which it is sought to use the proxy.
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63. Any corporation which is a member of record of the Company may
in accordance with its Articles or in the absence of such provision by
resolution of its Directors or other governing body authorize such person as it
thinks fit to act as its representative at any meeting of the Company or of any
class of members of the Company, and the person so authorized shall be entitled
to exercise the same powers on behalf of the corporation which he represents as
the corporation could exercise if it were an individual member of record of the
Company.
64. Shares of its own stock belonging to the Company or held by it
in a fiduciary capacity shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of outstanding
shares at any given time.
DIRECTORS
65. There shall be a Board of Directors consisting of not less
than one or more than ten persons (exclusive of Alternate Directors) PROVIDED
HOWEVER that the Company may from time to time by ordinary resolution increase
or reduce the limits in the numbers of Directors. The first Directors on the
Company shall be determined in writing by, or appointed by a resolution of, the
subscribers of the Memorandum of Association or a majority of them.
66. The remuneration to be paid to the Directors shall be such
remuneration as the Directors shall determine. Such remuneration shall be deemed
to accrue from day to day. The Directors shall also be entitled to be paid their
traveling, hotel and other expenses properly incurred by them in going to,
attending and returning from meetings of the Directors, or any committee of the
Directors, or general meetings of the Company, or otherwise in connection with
the business of the Company, or to receive a fixed allowance in respect thereof
as may be determined by the Directors from time to time, or a combination partly
of one such method and partly the other.
67. The Directors may by resolution award special remuneration to
any Director of the Company undertaking any special work or services for, or
undertaking any special mission on behalf of, the Company other than his
ordinary routine work as a Director. Any fees paid to a Director who is also
counsel or solicitor to the Company, or otherwise serves it in a professional
capacity shall be in addition to his remuneration as a Director.
68. A Director or Alternate Director may hold any other office or
place of profit under the Company (other than the office of Auditor) in
conjunction with his office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine.
69. A Director or Alternate Director may act by himself or his
firm in a professional capacity for the Company and he or his firm shall be
entitled to remuneration for professional services as if he were not a Director
or Alternate Director.
70. A shareholding qualification for Directors may be fixed by the
Company in general meeting, but unless and until so fixed no qualification shall
be required.
71. A Director or Alternate Director of the Company may be or
become a Director or other Officer of or otherwise interested in any company
promoted by the Company or in which the Company may be interested as shareholder
or otherwise and no such Director or Alternate Director shall be accountable to
the Company for any remuneration or other benefits received by him as a Director
or Officer of, or from his interest in, such other company.
72. No person shall be disqualified from the office of Director or
Alternate Director or prevented by such office from contracting with the
Company, either as vendor, purchaser or
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otherwise, nor shall any such contract or any contract or transaction entered
into by or on behalf of the Company in which any Director or Alternate Director
shall be in any way interested be or be liable to be avoided, nor shall any
Director or Alternate Director so contracting or being so interested be liable
to account to the Company for any profit realized by any such contract or
transaction by reason of such Director holding office or of the fiduciary
relation thereby established. A Director (or his Alternate Director in his
absence) shall be at liberty to vote in respect of any contract or transaction
in which he is so interested as aforesaid PROVIDED HOWEVER that the nature of
the interest of any Director or Alternate Director in any such contract or
transaction shall be disclosed by him or the Alternate Director appointed by him
at or prior to its consideration and any vote thereon.
73. A general notice that a Director or Alternate Director is a
shareholder of any specified firm or company and is to be regarded as interested
in any transaction with such firm or company shall be sufficient disclosure
under Article 72 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE DIRECTORS
74. Subject to the exception contained in Article 82, a Director
who expects to be unable to attend Directors' Meetings because of absence,
illness or otherwise may appoint any person to be an Alternate Director to act
in his stead and such appointee whilst he holds office as an Alternate Director
shall, in the event of absence therefrom of his appointor, be entitled to attend
meetings of the Directors and to vote thereat and to do, in the place and stead
of his appointor, any other act or thing which his appointor is permitted or
required to do by virtue of his being a Director as if the Alternate Director
were the appointor, other than appointment of an Alternate to himself, and he
shall ipso facto vacate office if and when his appointor ceases to be a Director
or removes the appointee from office. Any appointment or removal under this
Article shall be effected by notice in writing under the hand of the Director
making the same.
POWERS AND DUTIES OF DIRECTORS
75. The business of the Company shall be managed by the Directors
(or a sole Director if only one is appointed) who may pay all expenses incurred
in promoting, registering and setting up the Company, and may exercise all such
powers of the Company as are not prohibited, from time to time by the Statute,
or by these Articles, or such regulations, being not inconsistent with the
aforesaid, as may be prescribed by the Company in general meeting required to be
exercised by the Company in general meeting PROVIDED HOWEVER that no regulations
made by the Company in general meeting shall invalidate any prior act of the
Directors which would have been valid if that regulation had not been made.
76. The Directors may from time to time and at any time by powers
of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purpose and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Directors under
these Articles) and for such period and subject to such conditions as they may
think fit, and any such powers of attorney may contain such provisions for the
protection and convenience of persons dealing with any such attorneys as the
Directors may think fit and may also authorize any such attorney to delegate all
or any of the powers, authorities and discretions vested in him.
77. All cheques, promissory notes, drafts, bills of exchange and
other negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted,
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endorsed or otherwise executed as the case may be in such manner as the
Directors shall from time to time by resolution determine.
78. The Directors shall cause Minutes to be made in books provided
for the purpose:
(a) of all appointments of Officers made by the
Directors;
(b) of the names of the Directors (including those
represented thereat by an Alternate or by proxy) present at each meeting of the
Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of
the Company, and of the Directors and of Committees of Directors.
79. The Directors on behalf of the Company may pay a gratuity or
pension or allowance on retirement to any Director who has held any other
salaried office or place of profit with the Company or to his widow or
dependents and may make contributions to any fund and pay premiums for the
purchase or provision of any such gratuity, pension or allowance.
80. The Directors may exercise all the powers of the Company to
borrow money and to mortgage or charge its undertaking, property and uncalled
capital or any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party.
MANAGEMENT
81. (a) The Directors may from time to time provide for the
management of the affairs of the Company in such manner as they shall think fit
and the provisions contained in the three next following paragraphs shall be
without prejudice to the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may
establish any committees, local boards or agencies for managing any of the
affairs of the Company and may appoint any persons to be members of such
committees or local boards or any managers or agents and may fix their
remuneration.
(c) The Directors from time to time and at any time may
delegate to any such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the Directors and may
authorize the members for the time being of any such local board, or any of them
to fill up any vacancies therein and to act notwithstanding vacancies and any
such appointment or delegation may be made on such terms and subject to such
conditions as the Directors may think fit. The Directors may at any time remove
any person so appointed and may annul or vary any such delegation, but no person
dealing in good faith and without notice of any such annulment or variation
shall be affected thereby.
(d) Any such delegates as aforesaid may be authorized by
the Directors to subdelegate all or any of the powers, authorities, and
discretions for the time being vested in them.
MANAGING DIRECTORS
82. The Directors may, from time to time, appoint one or more of
their body (but not an Alternate Director) to the office of Managing Director
for such term and at such remuneration
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(whether by way of salary, or commission, or participation in profits, or partly
in one way and partly in another) as they may think fit but his appointment
shall be subject to determination ipso facto if he ceases from any cause to be a
Director and no Alternate Director appointed by him can act in his stead as a
Director or Managing Director.
83. The Directors may entrust to and confer upon a Managing
Director any of the powers exercisable by them upon such terms and conditions
and with such restrictions as they may think fit and either collaterally with or
to the exclusion of their own powers and may from time to time revoke, withdraw,
alter or vary all or any of such powers.
PROCEEDINGS OF DIRECTORS
84. Except as otherwise provided by these Articles, the Directors
shall meet together for the despatch of business, convening, adjourning and
otherwise regulating their meetings as they think fit. Questions arising at any
meeting shall be decided by a majority of votes of the Directors and Alternate
Directors present at a meeting at which there is a quorum, the vote of an
Alternate Director not being counted if his appointor be present at such
meeting. In case of an equality of votes, the Chairman shall have a second or
casting vote.
85. A Director or Alternate Director may, and the Secretary on the
requisition of a Director or Alternate Director shall, at any time summon a
meeting of the Directors by at least two days' notice in writing to every
Director and Alternate Director which notice shall set forth the general nature
of the business to be considered unless notice is waived by all the Directors
(or their Alternates) either at, before or after the meeting is held and
PROVIDED FURTHER if notice is given in person, by cable, telex or telecopy the
same shall be deemed to have been given on the day it is delivered to the
Directors or transmitting organization as the case may be. The provisions of
Article 40 shall apply mutatis mutandis with respect to notices of meetings of
Directors.
86. The quorum necessary for the transaction of the business of
the Directors may be fixed by the Directors and unless so fixed shall be two, a
Director and his appointed Alternate Director being considered only one person
for this purpose, provided always that if there shall at any time be only a sole
Director the quorum shall be one. For the purposes of this Article an Alternate
Director or proxy appointed by a Director shall be counted in a quorum at a
meeting at which the Director appointing him is not present.
87. The continuing Directors may act notwithstanding any vacancy
in their body, but if and so long as their number is reduced below the number
fixed by or pursuant to these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to that number, or of summoning a general meeting of the
Company, but for no other purpose.
88. The Directors may elect a Chairman of their Board and
determine the period for which he is to hold office; but if no such Chairman is
elected, or if at any meeting the Chairman is not present within five minutes
after the time appointed for holding the same, the Directors present, as
appointed by the Class "B" shareholders, may choose one of their number to be
Chairman of the meeting.
89. The Directors may delegate any of their powers to committees
consisting of such member or members of the Board of Directors (including
Alternate Directors in the absence of their appointors) as they think fit; any
committee so formed shall in the exercise of the powers so delegated conform to
any regulations that may be imposed on it by the Directors.
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90. A committee may meet and adjourn as it thinks proper.
Questions arising at any meeting shall be determined by a majority of votes of
the members present, and in the case of an equality of votes the Chairman shall
have a second or casting vote.
91. All acts done by any meeting of the Directors or of a
committee of Directors (including any person acting as an Alternate Director)
shall, notwithstanding that it be afterwards discovered that there was some
defect in the appointment of any Director or Alternate Director, or that they or
any of them were disqualified, be as valid as if every such person had been duly
appointed and qualified to be a Director or Alternate Director as the case may
be.
92. Members of the Board of Directors or of any committee thereof
may participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting. A resolution in writing (in one or more counterparts), signed by all
the Directors for the time being or all the members of a committee of Directors
(an Alternate Director being entitled to sign such resolution on behalf of his
appointor) shall be as valid and effectual as if it had been passed at a meeting
of the Directors or committee as the case may be duly convened and held.
93. (a) A Director may be represented at any meeting of the
Board of Directors by a proxy appointed by him in which event the presence or
vote of the proxy shall for all purposes be deemed to be that of the Director.
(b) The provisions of Articles 59-62 shall mutatis
mutandis apply to the appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
94. The office of a Director shall be vacated:
(a) If he gives notice in writing to the Company that he
resigns the office of Director;
(b) If he absents himself (without being represented by
proxy or an Alternate Director appointed by him) from three consecutive meetings
of the Board of Directors without special leave of absence from the Directors,
and they pass a resolution that he has by reason of such absence vacated office;
(c) If he dies, becomes bankrupt or makes any arrangement
or composition with his creditors generally;
(d) If he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
95. The Company may by ordinary resolution appoint any person to
be a Director and may in like manner remove any Director and may in like manner
appoint another person in his stead.
96. The Directors shall have power at any time and from time to
time to appoint any person to be a Director, either to fill a casual vacancy or
as an addition to the existing Directors but so that the total amount of
Directors (exclusive of Alternate Directors) shall not at any time exceed the
number fixed in accordance with these Articles.
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PRESUMPTION OF ASSENT
97. A Director of the Company who is present at a meeting of the
Board of Directors at which action on any Company matter is taken shall be
presumed to have assented to the action taken unless his dissent shall be
entered in the Minutes of the meeting or unless he shall file his written
dissent from such action with the person acting as the Secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to such person immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such action.
SEAL
98. The Seal shall only be used by the authority of the Directors
or of a committee of the Directors authorized by the Directors in that behalf
and every instrument to which the Seal has been affixed shall be signed by one
person who shall be either a Director or the Secretary or Secretary-Treasurer
or some person appointed by the Directors for the purpose.
PROVIDED THAT the Company may have for use in any place or places outside the
Cayman Islands, a duplicate seal or seals each of which shall be a facsimile of
the Common Seal of the Company and, if the Directors so determine, with the
addition on its face of the name of every place where it is to be used.
PROVIDED FURTHER THAT a Director, Secretary or other officer or representative
or attorney may without further authority of the Directors affix the Seal of the
Company over his signature alone to any document of the Company required to be
authenticated by him under Seal or to be filed with the Registrar of Companies
in the Cayman Islands or elsewhere wheresoever.
OFFICERS
99. The Company may have a President, a Secretary and/or Treasurer
appointed by the Directors who may also from time to time appoint such other
Officers as they consider necessary, all for such terms, at such remuneration
and to perform such duties, and subject to such provisions as to
disqualification and removal as the Directors from time to time prescribe.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
100. Subject to the Statute, the Directors may from time to time
declare dividends (including interim dividends) and distributions on shares of
the Company outstanding and authorize payment of the same out of the funds of
the Company lawfully available therefor.
101. The Directors may, before declaring any dividends, or
distributions, set aside such sums as they think proper as a reserve or reserves
which shall at the discretion of the Directors, be applicable for any purpose of
the Company and pending such application may, at the like discretion, be
employed in the business of the Company.
102. No dividend or distribution shall be payable except out of the
profits of the Company, realized or unrealized, or out of the share premium
account or as otherwise permitted by the Statute.
103. Subject to the rights of persons, if any, entitled to shares
with special rights as to dividends or distributions, if dividends or
distributions are to be declared on a class of shares they shall be declared and
paid according to the amounts paid or credited as paid on the shares of such
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class outstanding on the record date for such dividend or distribution as
determined in accordance with these Articles but no amount paid or credited as
paid on a share in advance of calls shall be treated for the purpose of this
Article as paid on the share.
104. The Directors may deduct from any dividend or distribution
payable to any member all sums of money (if any) presently payable by him to the
Company on account of calls or otherwise.
105. The Directors may declare that any dividend or distribution be
paid wholly or partly by the distribution of specific assets and in particular
of paid up shares, debentures, or debenture stock of any other company or in any
one or more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and in
particular may issue fractional certificates and fix the value for distribution
of such specific assets or any part thereof and may determine that cash payments
shall be made to any members upon the footing of the value so fixed in order to
adjust the rights of all members and may vest any such specific assets in
trustees as may seem expedient to the Directors.
106. Any dividend, distribution, interest or other monies payable
in cash in respect of shares may be paid by cheque or warrant sent through the
post directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of members or to such
person and to such address as such holder or joint holders may in writing
direct. Every such cheque or warrant shall be made payable to the order of the
person to whom it is sent. Any one or two or more joint holders may give
effectual receipts for any dividends, bonuses, or other monies payable in
respect of the share held by them as joint holders.
107. No dividend or distribution shall bear interest against the
Company.
CAPITALIZATION
108. The Company may upon the recommendation of the Directors by
ordinary resolution authorize the Directors to capitalise any sum standing to
the credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the credit
of profit and loss account or otherwise available for distribution and to
appropriate such sum to members in the proportions in which such sum would have
been divisible amongst them had the same been a distribution of profits by way
of dividend and to apply such sum on their behalf in paying up in full unissued
shares for allotment and distribution credited as fully paid up to and amongst
them in the proportion aforesaid. In such event the Directors shall do all acts
and things required to give effect to such capitalization, with full power to
the Directors to make such provisions as they think fit for the case of shares
becoming distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the members
concerned). The Directors may authorize any person to enter on behalf of all the
members interested into an agreement with the Company providing for such
capitalization and matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
109. The Directors shall cause proper books of account to be kept
with respect to:
(a) all sums of money received and expended by the
Company and the matters in respect of which the receipt or expenditure takes
place;
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(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such books of
account as are necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
110. The Directors shall from time to time determine whether and to
what extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall be open
to the inspection of members not being Directors and no member (not being a
Director) shall have any right of inspecting any account or book or document of
the Company except as conferred by Statute or authorized by the Directors or by
the Company in general meeting.
111. The Directors may from time to time cause to be prepared and
to be laid before the Company in general meeting profit and loss accounts,
balance sheets, group accounts (if any) and such other reports and accounts as
may be required by law.
AUDIT
112. The Company may at any Annual General Meeting appoint an
Auditor or Auditors of the Company who shall hold office until the next Annual
General Meeting and may fix his or their remuneration.
113. The Directors may before the first Annual General Meeting
appoint an Auditor or Auditors of the Company who shall hold office until the
first Annual General Meeting unless previously removed by an ordinary resolution
of the members in general meeting in which case the members at that meeting may
appoint Auditors. The Directors may fill any casual vacancy in the office of
Auditor but while any such vacancy continues the surviving or continuing Auditor
or Auditors, if any, may act. The remuneration of any Auditor appointed by the
Directors under this Article may be fixed by the Directors.
114. Every Auditor of the Company shall have a right of access at
all times to the books and accounts and vouchers of the Company and shall be
entitled to require from the Directors and Officers of the Company such
information and explanation as may be necessary for the performance of the
duties of the auditors.
115. Auditors shall at the next Annual General Meeting following
their appointment and at any other time during their term of office, upon
request of the Directors or any general meeting of the members, make a report on
the accounts of the Company in general meeting during their tenure of office.
NOTICES
116. Notices shall be in writing and may be given by the Company to
any member either personally or by sending it by post, cable, telex or telecopy
to him or to his address as shown in the register of members, such notice, if
mailed, to be forwarded airmail if the address be outside the Cayman Islands.
117. (a) Where a notice is sent by post, service of the notice
shall be deemed to be effected by properly addressing, pre-paying and posting a
letter containing the notice, and to have
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been effected at the expiration of sixty hours after the letter containing the
same is posted as aforesaid.
(b) Where a notice is sent by cable, telex or telecopy
service of the notice shall be deemed to be effected by properly addressing and
sending such notice through a transmitting organization, and to have been
effected on the day the same is sent as aforesaid.
118. A notice may be given by the Company to the joint holders of
record of a share by giving the notice to the joint holder first named on the
register of members in respect of the share.
119. A notice may be given by the Company to the person or persons
which the Company has been advised are entitled to a share or shares in
consequence of the death or bankruptcy of a member by sending it through the
post as aforesaid in a pre-paid letter addressed to them by name, or by the
title of representatives of the deceased, or trustee of the bankrupt, or by any
like description at the address supplied for that purpose by the persons
claiming to be so entitled, or at the option of the Company by giving the notice
in any manner in which the same might have been given if the death or bankruptcy
had not occurred.
120. Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every person shown as a member in the register of
members as of the record date for such meeting except that in the case of joint
holders the notice shall be sufficient if given to the joint holder first named
in the register of members.
(b) every person upon whom the ownership of a share
devolves by reason of his being a legal personal representative or a trustee in
bankruptcy of a member of record where the member of record but for his death or
bankruptcy would be entitled to receive notice of the meeting; and
No other person shall be entitled to receive notices of general meetings.
WINDING UP
121. If the Company shall be wound up the Liquidator may, with the
sanction of a special resolution of the Company and any other sanction required
by the Statute, divide amongst the members in specie or kind the whole or any
part of the assets of the Company (whether they shall consist of property of the
same kind or not) and may for such purpose set such value as he deems fair upon
any property to be divided as aforesaid and may determine how such division
shall be carried out as between the members or different classes of members. The
Liquidator may with the like sanction, vest the whole or any part of such assets
in trustees upon such trusts for the benefit of the contributories as the
Liquidator, with the like sanction, shall think fit, but so that no member shall
be compelled to accept any shares or other securities whereon there is any
liability.
122. If the Company shall be wound up, and the assets available for
distribution amongst the members as such shall be insufficient to repay the
whole of the paid-up capital, such assets shall be distributed so that, as
nearly as may be, the losses shall be borne by the members in proportion to the
capital paid up, or which ought to have been paid up, at the commencement of the
winding up on the shares held by them respectively. And if in a winding up the
assets available for distribution amongst the members shall be more than
sufficient to repay the whole of the capital paid up at the commencement of the
winding up, the excess shall be distributed amongst the members in proportion to
the capital paid up at the commencement of the winding up, on the shares held by
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them respectively. This Article is to be without prejudice to the rights of the
holders of shares issued upon special terms and conditions.
INDEMNITY
123. The Directors and Officers for the time being of the Company
and any trustee for the time being acting in relation to any of the affairs of
the Company and their heirs, executors, administrators and personal
representatives respectively shall be indemnified out of the assets of the
Company from and against all actions, proceedings, costs, charges, losses,
damages and expenses which they or any of them shall or may incur or sustain by
reason of any act done or omitted in or about the execution of their duty in
their respective offices or trusts, except such (if any) as they shall incur or
sustain by or through their own wilful neglect or default respectively and no
such Director, Officer or trustee shall be answerable for the acts, receipts,
neglects or defaults of any other Director, Officer or trustee or for joining in
any receipt for the sake of conformity or for the solvency or honesty of any
banker or other persons with whom any monies or effects belonging to the Company
may be lodged or deposited for safe custody or for any insufficiency of any
security upon which any monies of the Company may be invested or for any other
loss or damage due to any such cause as aforesaid or which may happen in or
about the execution of his office or trust unless the same shall happen through
the wilful neglect or default of such Director, Officer or trustee.
FINANCIAL YEAR
124. Unless the Directors otherwise prescribe, the financial year
of the Company shall end on 30th September each year and, following the year of
incorporation, shall begin on 1st October in each year.
AMENDMENTS OF ARTICLES
125. Subject to the Statute, the Company may at any time and from
time to time by special resolution alter or amend these Articles in whole or in
part.
TRANSFER BY WAY OF CONTINUATION
126. If the Company is exempted as defined in the Statute, it
shall, subject to the provisions of the Statute and with the approval of a
Special Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and to
be deregistered in the Cayman Islands.
BEARER SHARES
127. Articles 128 to 135 shall apply only if the Company is
exempted as defined in the Statute and shall with respect to bearer shares apply
notwithstanding any other provision contained in these Articles.
128. The Company may at the request of any applicant for shares
issue such shares to bearer provided always that no share shall be issued to
bearer unless it is fully paid up and non-assessable.
129. Where shares are issued to bearer they shall be represented by
a certificate or certificates in bearer form (hereinafter referred to as a
"bearer certificate" or "bearer certificates") and the fact that they are so
issued and the date upon which they are so issued shall be entered in the
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register of members; and except as aforesaid, the provisions of Article 4 hereof
shall apply to such bearer certificates.
130. Shares issued to bearer shall be transferred by delivery of
the bearer certificate or certificates representing the same.
131. Except as otherwise provided in these Articles the only person
capable of being recognized as entitled to exercise any of the rights or to
receive any of the benefits (subject to Article 134 hereof) in respect of a
share issued to bearer shall be the holder of the bearer certificate
representing the same and for such purposes the Directors shall be entitled to
require presentation of the certificate in question or evidence satisfactory to
them that the person is the holder thereof.
132. There may, if the Directors so resolve, be attached to or
issued with each bearer certificate a coupon or series of coupons in such form
as the Directors may determine, each such coupon to specify the number of shares
to which it relates and to bear a distinguishing number to the intent that to
each dividend declared by the Directors there shall correspond one and only one
distinguishing number.
133. Where the Company has issued shares to bearer, notices to any
holder thereof shall (unless waived in manner set forth in Article 39 hereof or
unless some other form of giving notice shall have been endorsed on the bearer
certificate or certificates in question in which case such form shall be used)
be deemed to have been given by publication of the notice in question in two
editions of such international publication as the Directors shall resolve.
134. (a) Any dividend or distribution whether in cash or in
specie, or payment of interest or other monies in respect of shares issued to
bearer shall be made only on delivery of the relevant coupon (where coupons have
been issued) or otherwise upon production of the relevant bearer certificate on
the terms and in the manner specified in the advertisement thereof pursuant to
paragraph (b) of this Article and may be paid or made by cheque, warrant or
other document of title delivered to or sent through the post directed to such
address as may be specified in writing by the holder of the bearer certificate
in question or the relevant coupon as the case may be. Where appropriate there
shall be delivered or sent in like manner with such payment a coupon or series
of coupons as referred to in Article 132 bearing the next consecutive
distinguishing number or numbers as the case may be.
(b) Upon any dividend, distribution, payment of interest
or other monies being declared to be payable or made upon shares issued to
bearer, the Directors shall give notice thereof in the manner set forth in
Article 133 stating:
(i) the date of declaration of the dividend:
(ii) the place or places to which the coupon or
certificate shall be delivered or produced as the case may be;
(iii) the time within which the coupon or
certificate shall be delivered or produced as the case may be; and
(iv) where appropriate, the distinguishing number
of the relevant coupon.
135. (a) The holder of shares registered in his name may upon
delivery to the Directors of a request in writing and the share certificate or
certificates registered in his name in respect of such shares surrender such
share certificate or certificates and receive in its or their stead as the case
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may be a bearer certificate or certificates in respect of some or all of such
shares as he shall specify in the request and share certificate or certificates
in registered form in respect of the remainder (if any); and the register of
members shall be amended accordingly.
(b) The holder of shares issued to bearer may upon
delivery to the Directors of a request in writing and the bearer certificate or
certificates representing such shares surrender such share certificate or
certificates and be registered as the holder in respect of some or all of such
shares as he shall specify in the request and receive share certificate or
certificates in registered form in respect thereof and bearer certificate or
certificates for the remainder (if any); and the register of members shall be
amended accordingly.
DATED the 9th day of December, 1999.
/s/
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Trident Nominees (Cayman) Ltd
(Corporation)
P.O. Box 847, Grand Cayman
/s/
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Witness to the above Signature
I, Ronnie Williams Anglin, Assistant Registrar of Companies in and for the
Cayman Islands DO HEREBY CERTIFY that this is a true and correct copy of the
Articles of Association of this Company duly incorporated on the 10th day of
December, 1999.
/s/
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ASSISTANT REGISTRAR OF COMPANIES
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