<PAGE>
Exhibit 3.2
The Registrar of Companies
Tower Building
Grand Cayman
Cayman Islands
ASAT HOLDINGS LIMITED
("the Company")
PLEASE TAKE NOTICE THAT the following resolutions were passed as written
resolutions of the shareholders of the company on 6th July 2000;
IT WAS RESOLVED AS ORDINARY RESOLUTIONS:-
1. THAT, condition upon completion of the Initial Public Offering on or before
31st of August, 2000, the 6,000,000 issued Non-Voting Ordinary Shares,
4,000,000 unissued Non-Voting Ordinary Shares and 10,000,000 unissued
Voting Deferred Shares be and are hereby reclassified as Ordinary Shares
with the rights and subject to the restrictions contained in the new
Articles of Association of the Company referred to in resolution 3 below,
pursuant to a plan of recapitalization which the Company intends to qualify
as a tax free reorganization under section 368(a)(1)(E) of the United
States Internal Revenue Code of 1986, as amended, (the "Code") and/or as a
tax free exchange under section 1036 of the Code;
2. THAT, conditional upon completion of the Initial Public Offering on or
before 31st August, 2000 and immediately following the reclassification in
(1) above, the authorized share capital of the Company be and is hereby
increased to 3,000,000,000 Ordinary Shares of US$0.01 each by the creation
of an additional 2,970,000,000 Ordinary Shares of US$0.01 each;
3. THAT, conditional upon completion of the Initial Public Offering on or
before 31st August, 2000 and immediately following the increase in
authorized share capital in (2) above, 47 Ordinary Shares of US$0.01 each
be and are hereby allotted to each Shareholder of the Company for every one
Ordinary Share of US$0.01 each held by the Shareholder, such Ordinary
Shares to be credited as fully paid and ranking pari passu with the
Ordinary Shares of the Company;
[SEAL APPEARS HERE]
<PAGE>
IT WAS RESOLVED AS SPECIAL RESOLUTIONS:-
4. THAT, conditional upon completion of the Initial Public Offering on or
before 31st August, 2000, the new Articles of Association of the Company (a
copy of which is annexed to these resolutions) be and are hereby adopted as
the Article of Association of the Company in substitution for and to the
exclusion of the existing Articles of Association of the Company.
5. THAT, conditional upon completion of the Initial Public Offering on or
before 31st August, 2000, the new restated Memorandum of Association of the
Company (a copy of which is annexed to these resolutions) be and are hereby
adopted as the Restated Memorandum of Association of the Company in
substitution for and to the exclusion of the existing restated Memorandum
of Association of the Company.
6. THAT, notwithstanding anything to the contrary in Article 103 of the
Articles of Association regarding the composition of committees of the
Board of Directors, the Board shall be authorized to create a pricing
committee in connection with the Initial Public Offering consisting of
Andrew Liu and T.L. Li, such committee to determine the final pricing and
allotment of Ordinary Shares and underwriting discounts and commissions in
the Initial Public Offering.
7. THAT, notwithstanding anything to the contrary in Article 9 of the Articles
of Association regarding the allotment of ordinary shares, the Board shall
be authorized to allot by simple majority a maximum number of ordinary
shares in connection with the Initial Public Offering and to delegate to
the pricing committee the authority to make the final determination of the
number of shares to be allotted, which shall not exceed such maximum
number.
/s/ Maples and Calder
--------------------------------
MAPLES AND CALDER
Dated this 28/th/ day of July 2000
CERTIFIED TO BE A TRUE AND CORRECT COPY
SIG. /s/ Renda S. Cornwall
-----------------------------------
RENDA S. CORNWALL
Asst. Registrar of Companies
Date. 28 July, 2000
---------------------------------
[SEAL APPEARS HERE]
<PAGE>
THE COMPANIES LAW (2000 REVISION)
OF THE CAYMAN ISLANDS
---------------------
COMPANY LIMITED BY SHARES
-------------------------
RESTATED MEMORANDUM OF ASSOCIATION
OF
ASAT HOLDINGS LIMITED
(As Adopted on 14 July, 2000 Pursuant to a Special Resolution
Passed on 5 July, 2000)
1. The name of the Company is ASAT Holdings Limited.
2. The Registered Office of the Company shall be at the offices of Maples and
Calder, Attorneys-at-Law Ugland House, P.O. Box 309, George Town, 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 investments,
financial, commercial, mercantile, trading and other operations.
(b) To carry on whether as principals, agents or [illegible]
howsoever the business of realtors, [illegible] consultants,
estate agents or [illegible] builders, contractors, engineers,
manufacturers, [illegible], in or vendors of all types of
property including [illegible]
[SEAL APPEARS HERE]
<PAGE>
2
(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 kind and, in
particular, mortgages, debentures, produce, concessions, options,
contracts, patents, annuities, licenses, stocks, shares, bonds,
policies, book debts, business concerns, undertakings, claims,
privileges and chosen 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.
(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 by 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
<PAGE>
3
which may appear to the Directors of 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 (2000 Revision),
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
<PAGE>
4
families; to purchase Directors and officers liability insurance
and 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 profitability 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 license is required under the
laws of the Cayman Islands when so licensed under the terms of such
laws.
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 divided into 3,000,000,000 shares of
a nominal or par value of US$0.01 each with 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 (2000 Revision) and the Articles of Association and to
issue any part of its capital, whether original, redeemed or increased
with or without any preferences, 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 193 of the Companies
Law (2000 Revision) and, subject to the provisions of the Companies Law
(2000 Revision) 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.
CERTIFIED TO BE A TRUE AND CORRECT COPY
SIG. /s/ Renda S. Cornwall
---------------------------------
RENDA S. CORNWALL
Asst. Registrar of Companies
Date. 28 July, 2000
---------------------------------
[SEAL APPEARS HERE]
<PAGE>
THE COMPANIES LAW (2000 REVISION) OF THE CAYMAN ISLANDS
___________
Company Limited by Shares
___________
RESTATED ARTICLES OF ASSOCIATION
OF
ASAT HOLDINGS LIMITED
(As adopted on 14 July, 2000 pursuant to a Special Resolution
passed on 6 July, 2000)
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Heading Page
------- ----
<S> <C>
INTERPRETATION 1
SHARE RIGHTS 4
MODIFICATION OF RIGHTS 5
SHARES 5
CERTIFICATES 6
LIEN 7
CALLS ON SHARES 8
FORFEITURE OF SHARES 9
TRANSFER OF SHARES 10
ALTERATIONS OF CAPITAL 11
AMENDMENTS TO ARTICLES 12
DISPOSALS 12
GENERAL MEETINGS 12
NOTICE OF GENERAL MEETINGS 13
PROCEEDINGS AT GENERAL MEETINGS 14
VOTING 15
PROXIES 17
NUMBER OF DIRECTORS 18
APPOINTMENT AND REMOVAL OF DIRECTORS 18
ALTERNATE DIRECTORS 19
</TABLE>
<PAGE>
<TABLE>
<S> <C>
REMUNERATION AND EXPENSES OF DIRECTORS 19
DIRECTORS INTERESTS 20
POWERS AND DUTIES OF THE BOARD 22
PROCEEDINGS OF THE BOARD 25
SECRETARY 28
THE SEAL 28
DIVIDENDS AND OTHER PAYMENTS 28
RESERVES 30
CAPITALISATION OF PROFITS 30
SUBSCRIPTION RIGHTS RESERVE 31
RECORD DATES 34
ACCOUNTING RECORDS 34
AUDIT 34
SERVICE OF NOTICES AND OTHER DOCUMENTS 35
DESTRUCTION OF DOCUMENTS 36
WINDING UP 37
INDEMNITY 37
</TABLE>
<PAGE>
THE COMPANIES LAW (2000 REVISION) OF THE CAYMAN ISLANDS
_________________
COMPANY LIMITED BY SHARES
_________________
RESTATED ARTICLES OF ASSOCIATION
OF
ASAT HOLDING LIMITED
(As Adopted on 14 July, 2000 Pursuant to a Special Resolution
Passed on 6 July, 2000)
1. In these Articles Table A in the Schedule to the Statute does not apply.
INTERPRETATION
2. In these Articles unless the context otherwise requires:
"Affiliates" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person (and including a Subsidiary). No Shareholder shall be deemed an
Affiliate of any other Shareholder solely by reason of any investment in
the Company. For the purpose of this definition, the terms "control"
(including, with correlative meanings, the term "controlling", "controlled
by" and "under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person;
whether through the ownership of voting securities or by contract or
otherwise;
"Board" means the Board of directors of the Company or the directors
present at a meeting of directors at which a quorum is present;
"Business Day" means a day other than Saturday, Sunday, or any day on which
banks located in Hong Kong are authorized [illegible] obligated to close;
"debenture" shall include debenture stock;
"Independent Directors" means the persons appointed as directors of the
Company who (i), at the time of their election, are not (a) individually
direct or indirect legal or holders
[SEAL APPEARS HERE]
<PAGE>
2
of equity securities of the Company or any if its subsidiaries in an amount
greater than 6 per cent, of the equity securities of the Company or such
subsidiary then in issue or (b) employees, officers or directors of the
Company or any of its Subsidiaries or of any Affiliate of the Company or
any of its Subsidiaries (other than as an Independent Director) and (ii)
are nominated as Independent Directors by the Board; provided that for so
long as equity securities of the Company are quoted on NASDAQ at least
three of the Independent Directors shall fulfill the then current
requirements of the National Association of Securities Dealers, Inc. as to
independence;
"Instrument of Transfer" means an instrument of transfer for the transfer
of legal title to a Share.
"NASDAQ" means National Association of Securities Dealers, Inc. Automated
Quotation System's National Market;
"Office" means the registered office of the Company;
"Ordinary Resolution" included a unanimous written resolution of all
Shareholders: for the purpose of these Articles, the requisite majority
shall be more than half of the votes of such Shareholders of the Company
as, being entitled to do so, vote in person or, where proxies are allowed,
by proxy or, in the case of corporations, by their duly authorized
representatives, at a general meeting of which notice specifying the
intention to propose the resolution as an ordinary resolution has been duly
given:
"paid up" means paid up or credited as paid up;
"Person" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof;
"Register" means the register of Shareholders of the Company;
"Seal" means the common seal of the Company;
"Secretary" includes a temporary or assistant Secretary and any person
appointed by the Board to perform any of the duties of the Secretary;
"Sell" means to Transfer, except by way of pledge, charge, hypothecations
or other grant of a security interest or making of
<PAGE>
3
any other encumbrance, and "Sale" and "Sales" shall have correlative
meanings;
"Shareholder" means each registered shareholder of the Company;
"Special Resolution" has the same meaning as in the Statute and includes a
unanimous written resolution of all Shareholders, for this purpose, the
requisite majority shall be not less than two-thirds of the votes of such
Shareholders of the Company as, being entitled to do so, vote in person or,
where proxies are allowed, by proxy or, in the case of corporations, by
their duly authorized representatives, at a general meeting of which notice
specifying the intention to propose the resolution as a special resolution
has been duly given;
"Share" means a share in the capital of the Company;
"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;
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other such persons performing
similar functions are at the time directly or indirectly owned by such
Person;
"these Articles" means these Articles of Association in their present from
or as from time to time altered;
"Transfers" means to sell, exchange, assign, pledge, charge, grant a
security interest, make a hypothecation, gift or other encumbrance, or
entering into any contract therefor, any voting trust or other agreement or
arrangement with respect to the transfer or voting rights or any other
legal or beneficial interest in any of the Shares, creating any other claim
thereto or make any other transfer or disposition whatsoever, whether
voluntary or involuntary, affecting the right, title, interest or
possession in, to or of such Shares, and a "Transfer" and "Transfers" shall
have correlative meanings;
"Warrants" means the warrants issued in the offering of 155,000 units
pursuant to the warrant Agreement dated 29th October, 1999 between the
Company and The Chase Manhattan Bank as Warrant Agent, with each unit
consisting of US$1,000 principal amount of 12.5% senior notes due 2006 of
ASAT Finance LLC and one warrant to subscribe 2.3944 Ordinary Shares at an
exercise price of
<PAGE>
4
US$18.60 per Share (subject to adjustment in certain circumstance):
references to writing include references to any method of representing or
reproducing words in a legible and non-transitory form;
references to documents being in writing or in written form or being sent
or delivered shall include their being in the form or a telex or facsimile
or (as the case may be) being telexed or faxed and references to any
document being signed by a particular person includes an indication in any
telex or facsimile message that such message was dispatched by or at the
direction of such person;
any words or expressions defined in the Statute in force at the date when
these Articles are adopted shall bear the same meaning in these Articles;
and
where for any purpose an ordinary resolution of the Company is required, a
special resolution shall also be effective.
REGISTERED OFFICE AND TRANSFER BY WAY OF CONTINUATION
3. (A) The Office shall be at such place in the Cayman Islands as the Board
shall from time to time appoint.
(B) If the Company is exempted as defined in the Statute, it shall,
subject to the provisions of the Statue and with the approval of an
Ordinary 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 be deregistered in the Cayman Islands.
SHARE RIGHTS
4. Subject to any special rights conferred on the holders of any Shares or
class of Shares, any Share in the Company may be issued with or have
attached thereto such preferred, deferred, qualified or other special
rights or such restrictions, whether in regard to dividend, voting, return
of capital or otherwise as the Board may decide.
5. Subject to the provisions of the Statute and the Memorandum of Association
any Shares may, with the approval of the Board, be issued on the terms that
they are, or at the option of the Company are liable, to be redeemed on
such terms and in such
<PAGE>
5
manner as the Board before the issue of the Shares may determine.
6. As of the date of adoption of these Articles, the authorized share capital
of the Company is US$30,000,000 (United States Dollars) divided into
3,000,000,000 Shares of a nominal or par value of US$0.01 each.
MODIFICATION OF RIGHTS
7. All or any of the special rights for the time being attached to any class
of Shares for the time being issued may from time to time (whether or not
the Company is being wound up) be varied either with the consent in writing
of the holders of not less than two-thirds in nominal value of the issued
Shares of that class or with the sanction of a special resolution passed at
a separate general meeting of the holders of those Shares. All the
provision of these Articles as to general meeting of the Company shall
apply to any such separate general meeting, but so that the necessary
quorum shall be two person holding or representing by proxy not less that
one-third in nominal value of the issued Shares of the class, that every
holder of Shares of the class shall be entitled on a poll to one vote for
every Share of the class held by him, that nay holder of Shares of the
class present in person or by proxy may demand a poll and that at any
meeting of such holders adjourned through want of a quorum one holder
present in person or by proxy (whatever the number of Shares held by him)
shall be a quorum.
8. The special rights conferred upon the holder of any Shares shall not,
unless otherwise expressly provided in the rights attaching to or the terms
of issue of those Shares, be deemed to be altered by the creation or issue
of further Shares ranking pari passu with them.
SHARES
9. Subject to the provisions of these Articles and 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 unissued Shares of the
Company (whether forming part of the original or any increased capital)
shall be at the disposal of the Board, which may offer, allot, grant
options over, warrants to subscribe for or otherwise dispose of them to
such persons, at such times and for such consideration and upon such terms
and conditions as the Board may decide.
<PAGE>
6
10. The Company may in connection with the issue of any Shares exercise all
powers of paying commission and brokerage conferred or permitted by the
Statute.
11. Except as ordered by a Court of competent jurisdiction or as required by
law, no person shall be recognized by the Company as holding any Share upon
any trust and the Company shall not be bound by or required in any way to
recognize (even when having notice of it) any equitable, contingent, future
or partial interest in any Share or any interest in any fractional part of
a Share or (except only as otherwise provided by these Articles or by law)
any other right in respect of any shares except an absolute right to the
whole of the Share in the registered holder.
CERTIFICATES
12. Every person whose name is entered as a Shareholder in the Register shall
be entitled, without payment, to receive within two months after allotment
or lodgement of Transfer (or within such other period as the terms of issue
shall provide) one certificate for all his Shares of any one class or
several certificates each for one or more of his Shares of such class upon
payment for every certificate after the first of such sum (if any) not
exceeding US$2 as the Board may from time to time decide. In the case of a
Share held jointly by several persons, delivery of a certificate to one of
several joint holders shall be sufficient delivery to all. A Shareholder
who has Transferred part of the Shares comprised in his holding shall be
entitled to a certificate for the balance without charge.
13. If a Share certificate is defaced, worn out, lost or destroyed it may be
replaced without fee but on such terms (if any) as to evidence and
indemnity and to payment of the costs and out-of-pocket expenses of the
Company in investigating such evidence and preparing such indemnity and in
complying with the notice requirements imposed on the Company by the
Statute as the board may think fit and where it is defaced or worn out, on
delivery of the old certificate to the Company.
14. All forms of certificate for Share or loan capital or other securities of
the Company (other than letters of allotment, scrip certificates and other
like documents ) may, except to the extent that the terms and conditions
for the time being relating thereto otherwise provide, be issued under the
Seal. The Board may by resolution decide, either generally or in any
particular case or cases, that any signatures on any such certificates need
not be autographic but may be applied to the certificates by
<PAGE>
7
some mechanical means or may be printed on them or that the certificates
need not be signed by any person.
LIEN
15. The Company shall have a first and paramount lien on every Share (not being
a fully paid Share) for all amounts, whether presently payable or not,
called or payable to the Company, at a date fixed by or in accordance with
the terms of issue of such Share, in respect of that Share. The Company
shall also have a first and paramount lien on every Share standing
registered in the name of a Shareholder, whether singly or jointly with any
other person or persons, for all the debts and liabilities of such
Shareholder or his estate to the Company, whether the same shall have been
incurred before or after notice to the Company of any interest of any
person other than such Shareholder, and whether the time for the payment or
discharge of the same shall have actually arrived or not, and
notwithstanding that the same are joint debts or liabilities of such
Shareholder or his estate and any other person, whether a Shareholder or
not. The Company's lien on a Share shall extend to every amount payable in
respect of it. The Board may at any time either generally or in any
particular case waive any lien that has arisen, or declare any Share to be
wholly or in part exempt from the provisions of this Article.
16. The Company may sell, in such manner as the Board may decide, any Share on
which the Company has a lien, but no sale shall be made unless some sum in
respect of which the lien exists is presently payable and is not paid
within fourteen days after a notice in writing, demanding payment of the
sum presently payable and stating that if the notice is not complied with
the Share may be sold, has been served on the registered holder for the
time being of the Share.
17. The net proceeds of the sale by the Company of any Shares on which it has a
lien shall be applied in or towards payment or discharge of the debt of
liability in respect of which the lien exists so far as it is presently
payable, and any residue shall (subject to a like lien for debts or
liabilities not presently payable as existed upon the Share prior to the
sale) be paid to the person who was entitled to the Share at the time of
the sale. For giving effect to any such sale the Board may authorize some
person to Transfer the Share sold to the purchaser thereof. The purchaser
shall be registered as the holder of the Share and he shall not be bound to
see to the application of the purchase money, nor shall his title to the
<PAGE>
8
Share be affected by any irregularity or invalidity in the proceedings
relating to the sale.
CALLS ON SHARES
18. The Board may from time to time make calls upon the Shareholders in respect
of any moneys unpaid on their Shares (whether on account of the nominal
amount of the Shares or by way of premium) and not payable on a date fixed
by or in accordance with the terms of issue, and each Shareholder shall
(subject to the Company serving upon him at least fourteen days' notice
specifying when and where payment is to be made) pay to the Company as
required by the notice the amount called on his Shares. A call may be
revoked or postponed as the Board may decide.
19. A call may be made payable by installments and shall be deemed to have been
made at the time when the resolution of the Board authorizing the call was
passed.
20. The joint holders of a Share shall be jointly and severally liable to pay
all calls in respect of the Share.
21. If an amount called in respect of a Share remains unpaid after it has
become due and payable, the person from whom the sum is due shall pay
interest on the amount unpaid from the day it is due and payable to the
time of actual payment at such rate, not exceeding twenty per cent, per
annum, as the Board may decide, but the Board shall be at liberty to waive
payment of the interest wholly or in part.
22. Any amount which, by the terms of issue of a Share, becomes payable on
allotment or on any date fixed by or in accordance with the terms of issue,
whether in respect of the nominal amount of the Share or by way of premium,
shall for all 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, if it is not paid, all the relevant provisions of
these Articles shall apply as if the sum had become due and payable by
virtue of a call.
23. The Board may on the issue of Shares differentiate between the allottees or
holders as to the amount of calls to be paid and the times of payment.
24. The Board may, if it thinks fit, receive from any Shareholder willing to
advance them all or any part of the moneys uncalled and unpaid upon any
Shares held by him and in respect of all or
<PAGE>
9
any of the moneys so advanced may (until they would, but for the advance,
become presently payable) pay interest at such rate, not exceeding (unless
the Company by ordinary resolution shall otherwise direct) twenty per cent,
per annum, as may be agreed upon between the Board and the Shareholder
paying the advance.
FORFEITURE OF SHARES
25. If a Shareholder fails to pay any call or installment of a call on the day
appointed for payment thereof, the Board may at any time serve a notice on
him requiring payment of so much of the call or installment as is unpaid,
together with any interest which may have accrued.
26. The notice shall name a further day (not being less than fourteen days from
the date of the notice) on or before which and the place where, the payment
required by the notice is to be made and shall state that in the event of
non-payment on or before the day and at the place appointed, the Shares in
respect of which the call has been made or installment is payable will be
liable to be forfeited. The Board may accept the surrender of any Share
liable to be forfeited and, in that event, references in these Articles to
forfeiture shall include surrender.
27. If the notice is not complied with, any Share in respect of which it has
been given may at any time, before payment of all calls or installments and
interest due in respect thereof has been made, be forfeited by a resolution
of the Board to that effect. The forfeiture shall include all dividends
declared in respect of the forfeited Shares and not paid before the
forfeiture.
28. When any Share has been forfeited, notice of the forfeiture shall be served
upon the person who was before forfeiture the holder of the Share; but no
forfeiture shall be in any manner invalidated by any omission or neglect to
give notice.
29. A forfeited Share shall be deemed to be the property of the Company and may
be sold, re-allotted or otherwise disposed of either to the person who was,
before forfeiture, the holder thereof or entitled thereto or to any other
person upon such terms and in such manner as the Board shall decide. At any
time before a sale, re-allotment or disposal the forfeiture may be
cancelled on such terms as the Board may decide.
30. A person whose Shares have been forfeited shall cease to be a Shareholder
in respect of the forfeited Shares but shall, notwithstanding the
forfeiture, remain liable to pay to the
<PAGE>
10
Company all moneys which at the date of forfeiture were payable by him to
the Company in respect of the Shares with interest thereon at the rate of
twenty per cent, per annum (or such lower rate as the Board may decide)
from the date of forfeiture until payment, and the Company may enforce
payment without being under any obligation to make any allowance for the
value of the Shares forfeited.
31. A certificate in writing under the hand of one director or the Secretary
and that a Share has been duly forfeited on the date stated in the
declaration shall be conclusive evidence of the facts therein stated as
against all persons claiming to be entitled to the Share. The Company may
receive the consideration (if any) given for the Share on the sale, re-
allotment or disposal of it and the Board may authorize some person to
Transfer the Share to the person to whom it is sold, re-allotted 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 relating to the forfeiture,
sale, re-allotment or disposal of the Share.
TRANSFER OF SHARES
32. The Instrument of Transfer of a Share shall be signed by or on behalf of
the transferor and the transferee and the transferor shall be deemed to
remain the holder of the Share until the name of the transferee is entered
in the Register in respect thereof. All Instruments of Transfer, when
registered, may be retained by the Company.
33. The Board may decline to register any transfer of legal title to a Share
unless:
(i) the Instrument of Transfer, duly stamped, is lodged with the Company
accompanied by the certificate for the Shares to which it relates and
such other evidence as the Board may reasonably require to shoe the
right or the transferor to make the transfer;
(ii) the Instrument of Transfer is in respect of only one class of Share;
and
(iii) in the case of a transfer of legal title to a Share to joint holders,
the number of joint Holders to whom the Share is to be transferred
does not exceed four.
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11
34. If the Board declines to register a transfer of legal title to a Share
it shall, within two months after the date on which the Instrument of
Transfer was lodged, send to the transferor and the transferee notice
of the refusal.
35. No fee shall be charged by the Company for registering any transfer of
legal title to a share, probate, letters of administration, certificate
of death or marriage, power of attorney, stop notice, order of court or
other instrument relating to or affecting the title to any Share, or
otherwise making any entry in the Register relating to any Share.
ALTERATIONS OF CAPITAL
36. The Company may from time to time by Ordinary Resolution increase its
capital by such sum to be divided into Shares of such amount as the
resolution shall prescribe.
37. The Company may, by the resolution increasing the capital, direct that
the new Shares or any of them shall be offered in the first instance
either at per or at a premium or (subject to the provisions of the
Statute) at a discount or may make any other provisions as to issue of
the new Shares.
38. The new Shares shall be subject to all the provisions of these Articles
with reference to lien, the payment of calls, forfeiture, Transfer,
transmission and otherwise.
39. The Company may from time to time by Ordinary Resolution:
(i) consolidate, or consolidate and then divide, all or any of its
share capital into Shares of larger amount than its existing
Shares;
(ii) sub-divide its existing Shares or any of them into Shares of
smaller amount than is fixed by the Memorandum of Association and
so that the resolution whereby any Share is sub-divided may
determine that as between the holders of the Shares resulting from
such sub-division one or more of the Shares may have any such
preferred or other special rights over, or may have any such
deferred or qualified rights or be subject to any such restrictions
as compared with, the other or others as the Company has power to
attach to unissued or new Shares;
(iii) cancel any Shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
<PAGE>
12
person and diminish the amount of its authorized share capital by
the amount of the Shares so cancelled;
and may also by Special Resolution, subject to the provisions of the
Statute:
(iv) reduce its authorized and issued share capital or any capital
redemption reserve fund in any way;
(v) purchase its own Shares (including any redeemable Shares), and make
a payment in respect of the redemption or purchase of its own
Shares otherwise then out of the distributable profits of the
Company or the proceeds of a fresh issue of Shares.
Where any difficulty arises in regard to any consolidation or division
under paragraph (I) of this Article, the Board may deal with the
difficulty as it thinks fit and in particular may issue fractional
certificates or arrange for the sale of the Shares representing
fractions and the distribution of the net proceeds of sale in due
proportion among those Shareholders who would have been entitled to the
fractions and for this purpose the Board may authorize some person to
Transfer the Shares representing fractions to the purchaser, who 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 relating to the sale.
AMENDMENTS TO ARTICLES
40. These Articles of Association and the Memorandum of Association of the
Company may only be amended by Special Resolution.
DISPOSALS
41. The Company may by Ordinary Resolution dispose of all or substantially
all of its assets.
GENERAL MEETINGS
42. The Board shall convene and the Company shall hold general meetings as
annual general meetings in accordance with the requirements of the
Statute at such times and places as the board shall appoint. Any
general meeting of the Company other than an annual general meeting
shall be called an extraordinary general meeting.
<PAGE>
13
43. The Board may, whenever it thinks fit, convene an extraordinary general
meeting.
NOTICE OF GENERAL MEETINGS
44. An annual general meeting and a meeting called for the passing of a
Special Resolution shall be called by not less than twenty-one days'
notice in writing. A general meeting other than an annual general
meeting or a meeting called for the passing of a Special Resolution
shall be called by not less than fourteen days' notice in writing. The
notice shall be exclusive of the day on which it is served or deemed to
be served and of the day for which it is given and it shall specify the
place, day and time of the meeting and, in the case of special
business, the general nature of that business. The notice convening an
annual general meeting shall specify the meeting as such and the notice
convening a meeting to pass a special resolution shall specify the
intention to propose the resolution as a Special Resolution. Notice of
every general meeting shall be given to all Shareholders other than any
who, under the provisions of these Articles or the terms of issue of
the Shares they hold, are not entitled to receive such notices from the
Company, and also to the Auditors for the time being of the Company.
Provided that a general meeting of the Company which is called by
shorter notice than that specified in this Article shall be deemed to
have been duly called if it is so agreed:
(i) in the case of a meeting called as the annual general meeting, by
all the Shareholders entitled to attend and vote at the meeting;
and
(ii) in the case of any other meeting, by a majority in number of the
Shareholders having the right to attend and vote at the meeting,
being a majority together holding not less than 95 percent, in
nominal value of the Shares giving that right,
Provided that, notwithstanding the above, a meeting called for the
passing of a Special Resolution for voluntary winding up (other than a
Shareholders' voluntary winding up) shall not be called by less than
seven days' notice.
45. In every notice calling a general meeting of the Company, there shall
appear with reasonable prominence a statement that a Shareholder
entitled to attend and vote is entitled to appoint a proxy to attend
and vote instead of him and that a proxy need not be a Shareholder.
<PAGE>
14
PROCEEDINGS AT GENERAL MEETINGS
46. All business shall be deemed special that is transacted at an
extraordinary general meeting and also all business that is transacted at
an annual general meeting with the exception of:
(i) the consideration and adoption of the accounts and balance sheet
and the reports of the directors and the Auditors and other
documents required to be annexed to the accounts;
(ii) the appointment and the fixing of the remuneration of the
Auditors; and
(iii) the fixing of, or the determining of the method of fixing, the
remuneration of the directors.
47. No business shall be transacted at any general meeting unless a quorum
is present when the meeting proceeds to business, but the absence of a
quorum shall not preclude the appointment, choice or election of a
chairman which shall not be treated as part of the business of the
meeting. Save as otherwise provided by these Articles, at least two
persons holding in person or representing by proxy not less than
one-third in nominal value of the issued Shares and entitled to vote
shall be a quorum for all purposes. A corporation being a Shareholder
shall be deemed for the purpose of these Articles to be present in
person if represented by proxy or by its duly authorized
representative.
48. If within fifteen minutes (or such longer time not exceeding one hour as
the chairman of the meeting may determine to wait) after the time
appointment for the commencement of the meeting a quorum is not present,
the meeting, if convened on the requisition of Shareholders, shall be
dissolved. In any other case it shall stand adjourned to such other day
(not being less than fourteen nor more than twenty-eight days letter) and
at such other time or place as the chairman of the meeting may determine.
The Company shall give not less than Seven days' notice in writing of any
meeting adjourned through wand of a quorum.
49. Every director shall be entitled to attend and speak at any general
meeting of the Company.
50. The chairman (if any) of the Board or, in his absence, a deputy
chairman (if any) shall preside as chairman at every general meting. If
there is no such chairman or deputy chairman, or if at any meeting
neither the chairman nor a deputy chairman is present within five
minutes after the time appointed for commencement of the meeting, or if
neither of them is willing to
<PAGE>
15
act as chairman, the directors present shall choose one of their number
to act, or if one director only is present he shall preside as chairman
if willing to act. If no director is present, or if each of the
directors present declines to take the chair, the persons present and
entitled to vote on a poll shall elect one of their number to be
chairman.
51. The chairman may with the consent of any meeting at which a quorum is
present (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 except business which might
lawfully have been transacted at the meeting from which the adjournment
took place.
52. When a meeting is adjourned for three months or more, notice of the
adjourned meeting shall be given as in the case of an original meeting.
Save as expressly provided by these Articles, it shall not be necessary
to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
53. A resolution in writing signed by or on behalf of all the Shareholders
for the time being entitled to receive notice of and attend and vote at
a general meeting of the Company at which such resolution was to be
proposed shall be treated as a resolution duly passed at such a general
meeting duly convened and held and, where relevant, as a special
resolution so passed. Any such resolution may consist of several
documents in the like form each signed by or on behalf of one or more
of the Shareholders. A telex or facsimile sent by or on behalf of a
Shareholder shall be deemed to be a document signed by or on behalf of
him for the purposes of this Article.
VOTING
54. Subject to any special terms as to voting upon which any shares may be
issued or may for the time being be held, on a show of hands every
holder of Shares who is present in person or by proxy at a general
meeting of the Company shall have one vote and on a poll every holder
of Shares shall have one vote for each Share of which he is the holder.
55. At any general meeting a resolution put to the vote of the meeting shall
be decided on a show of hands unless (before or on the declaration of
the result of the show of hands or on the withdrawal of any other
demand for a poll) a poll is demanded by the chairman of the meeting or
any holder of Shares present in person or by proxy and entitled to
vote. Unless a poll is so demanded and the demand is not withdrawn, a
declaration by the
<PAGE>
16
chairman that a resolution, on a show of hands, has been carried or
carried unanimously or by a particular majority or not carried by a
particular majority or lost shall be final and conclusive and an entry
to that effect in the minute book of the Company shall be conclusive
evidence of the fact without proof of the number or proportion of the
votes recorded for or against the resolution.
56. If a poll is duly demanded the result of the poll shall be deemed to be
the resolution of the meeting at which the poll was demanded.
57. 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 in such manner and either forthwith or on such
date (being not later than three months after the date of the demand)
and at such time and place as the chairman shall direct. It shall not
be necessary (unless the chairman otherwise directs) for notice to be
given of a poll.
58. The demand for a poll shall not prevent the continuance of a meeting
for the transaction of any business other than the question on which
the poll has been demanded and it may be withdrawn at any time before
the close of the meeting or the taking of the poll, whichever is the
earlier.
59. On a poll, votes may be given either personally or by proxy.
60. A person entitled to more than one vote on a poll need not use all his
votes or cast all the votes he uses in the same way.
61. In the case of joint holders of a Share 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 in respect to the joint holding, the first named
being the senior.
62. A Shareholder who is a patient for any purpose of any legislation in
the Cayman Islands relating to mental health or in respect of whom an
order has been made by any court having jurisdiction for the protection
or management of the affairs of persons incapable of managing their own
affairs may vote, whether on a show of hands or on a poll, by his
receiver, committee, curator bonis or other person in the nature of a
receiver, committee or curator bonis appointed by such court and such
receiver, committee, curator bonis or other person may vote
<PAGE>
17
on a poll by proxy and may otherwise act and be treated as such
shareholder for the purposes of general meetings.
63. No Shareholder shall, unless the Board otherwise determines, be entitled
to vote at any general meeting unless all calls or other sums presently
payable by him in respect of his shares in the Company have been paid.
PROXIES
64. The instrument appointing a proxy shall be in writing under the hand of
the appointor or of his attorney authorized in writing or, if the
appointor is a corporation, either under its seal or under the hand of
an officer, attorney or other person authorized to sign it.
65. A proxy need not be a Shareholder.
66. The instrument appointing a proxy and (if required by the Board) the
power of attorney or other authority (if any) under which it is signed,
or a notarially certified copy of such power or authority, shall be
delivered at the office (or at such place as may be specified in the
notice convening the meeting or in any notice of any adjournment or, in
either case, in any document sent therewith) not less than forty-eight
hours before the time appointed for holding the meeting or adjourned
meeting at which the person named in the instrument proposes to vote
or, in the case of a poll taken subsequently to the date of a meeting
or adjourned meeting, not less than twenty-four hours before the time
appointed for the taking of the poll and an instrument of proxy which
is not so delivered shall be invalid. No instrument appointing a proxy
shall be valid after the expiration of twelve months from the date
named in it as the date of its execution.
67. Instruments of proxy shall be in any common form or in such other form
as the Board may approve and the Board may, if it thinks fit, send out
with the notice of any general meeting forms of instrument of proxy for
use at the meeting. This instrument of proxy shall be deemed to confer
authority to demand or join in demanding a poll and to vote on any
amendment of a resolution put to the meeting for which it is given as
the proxy thinks fit. The instrument of proxy shall, unless the
contrary is stated in it, be valid as well for any adjournment of the
meeting as for the meeting to which it relates.
68. 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 instrument of
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18
proxy or of the authority under which it was executed, provided that
not intimation in writing of such death, insanity or revocation shall
have been received by the company at the office (or such place as may
be specified for the delivery of instruments of proxy in the notice
convening the meeting or other accompanying document) one hour at least
before the commencement of the meeting or adjourned meeting at which
the instrument of proxy is used.
NUMBER OF DIRECTORS
69. The Board shall consist of nine directors, at least three of which shall
be Independent Directors.
APPOINTMENT AND REMOVAL OF DIRECTORS
70. At each annual general meeting, [all] the directors shall retire from
office. A director who retires at an annual general meeting may, if
willing to continue to act, be reappointed. If he is not reappointed, he
shall retain office until the meeting appoints someone in his place, or
if it does not do so, until the end of the meeting.
71. No person other than a retiring director shall be appointed or
reappointed as director at any general meeting unless (a) he is
recommended by the directors and, in the case of the appointment or
re-appointment of an Independent Director, by a majority of the
Independent Directors, or (b) not less than fourteen or more than
thirty clear days before the date appointed for the meeting, notice
executed by a member qualified to vote at the meeting has been given to
the company of the intention to propose that person for appointment or
reappointment stating the particulars which would, if he were so
appointed or reappointed, be required to be included in the Company's
register of directors together with a notice executed by that person of
his willingness to be appointed or reappointed.
72. Subject to the provisions of these Articles, the shareholders may by
Ordinary Resolution appoint any person who is willing to act to be a
director to fill a vacancy, but so that the total number of directors
shall not exceed the number prescribed by these Articles.
73. Without prejudice to the power of the Company in general meeting to
appoint any person to be a director, the directors may appoint a person
who is willing to act to be a director to fill a vacancy, but so that
the total number of directors shall not exceed the number prescribed by
these Articles. A resolution by
<PAGE>
19
the Board to appoint a director shall be approved by a majority of the
directors present at the meeting and, in the case of the appointment of
an Independent Director, by a majority of the Independent Directors.
74. The Company may by Ordinary Resolution remove any director before the
expiration of his period of office.
75. No shareholding qualification for directors shall be required.
ALTERNATE DIRECTORS
76. (A) Each director may designate an alternate director who shall receive
all materials supplied to directors and shall be entitled to attend
all meetings of the Board and committees thereof.
(B) Every person acting as an alternate director shall (except as
regards power to appoint an alternate director and remuneration) be
subject in all respects to the provisions of these Articles
relating to directors and shall alone be responsible to the Company
for his acts and defaults and shall not be deemed to be the agent
of or for the director appointing him. An alternate director may be
paid expenses and shall be entitled to be indemnified by the
Company to the same extend mutatis mutandis as he were a director
but shall not be entitled to receive from the Company any fee in
his capacity as an alternate director.
(C) Every person acting as an alternate director shall have one vote
for each director for whom he acts as alternate (in addition to his
own vote if he is also a director). The signatures of an alternate
director to any resolution in writing of the Board or a committee
of the Board shall, unless the notice of his appointment provides
to the contrary, be as effective as the signature of his appointor
and any telex or cable from an alternate director which would, if
it were from his appointor, be effective to form part of any such
resolution shall, unless the notice of his appointment provides to
the contrary, be as effective as a telex or cable from his
appointor.
REMUNERATION AND EXPENSES OF DIRECTORS
77. No director (except for the Independent Directors) shall be entitled to
any remuneration for serving in such capacity provided however that
remuneration (if any) received in a
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20
capacity as employee or consultant shall not be prohibited by this
Article.
78. Each director may be paid his reasonable travelling, hotel and incidental
expenses of attending and returning from meetings of the Board or
committees of the Board or general meetings of the Company and shall be
paid all expenses properly and reasonably incurred by him in the conduct
of the Company's business or in the discharge of his duties as a
director. Any direction who, by request, goes or resides abroad for any
purposes of the Company or who performs services which in the opinion of
the Board go beyond the ordinary duties of a director may be paid such
extra remuneration (whether by way of salary, commission, participation
in profits or otherwise) as the Board by determine and this extra
remuneration shall be in addition to any remuneration provided for by or
pursuant to Article 77.
DIRECTORS' INTERESTS
79. (A) A director may hold any other office or place of profit with the
Company (except that of Auditor) in conjunction with his office of
director for such period and upon such terms as the Board may
decide and may be paid such extra remuneration for so doing
(whether by way of salary, commission, participation in profits or
otherwise) as the Board may decide and the extra remuneration shall
be in addition to any remuneration provided for by or pursuant to
any other Article.
(B) A director may act by himself or his firm in a professional
capacity for the Company (otherwise than as Auditor) and he or his
firm shall be entitled to remuneration for professional services as
if he were not a director.
(C) A director may be or become a director or other office of, or
otherwise interested in, any company promoted by the Company or in
which the Company may be interested and shall not be liable to
account to the company or the Shareholders for any remuneration,
profit or other benefit received by him as a director or officer of
or from his interest in the other company. The Board may also cause
the voting power conferred by the Shares in any other company held
or owned by the Company to be exercised in such manner in all
respects as it thinks fit, including the exercise of the voting
power in favour of any resolution appointing the directors or any
of them to be directors or officers of the other company or voting
or providing for the payment of
<PAGE>
21
remuneration to the directors or officers of the other company.
(D) Subject to Article 93, a director shall not vote or be counted in
the quorum on any resolution of the Board concerning his own
appointment as the holder of any office or place of profit with the
company or any other company in which the company is interested
(including the arrangement or variation of the terms or the
termination of the appointment).
(E) Where arrangements are under consideration concerning the
appointment (including the arrangement or variation of the terms
thereof, or the termination thereof) of two or more directors to
offices or places of profit with the company or any other company
in which the company is interested, a separate resolution may be
put in relation to each director and in such case each of the
directors concerned shall be entitled to vote (and be counted in
the quorum) in respect of each resolution except that concerning
his own appointment (or the arrangement or variation of the terms
thereof, or the termination thereof).
(F) Subject to the next paragraph of this Article, no director or
proposed or intending director shall be disqualified by his office
from contracting with the company, either with regard to his tenure
of any office or place of profit or as vendor, purchaser or in any
other manner whatever, nor shall any such contract or any other
contract or arrangement in which any director is in any way
interested be liable to be avoided, nor shall any director so
contracting or being so interested be liable to account to the
company or the shareholders for any remuneration, profit or other
benefits realized by any such contract or arrangement by reason of
such director holding that office or of the fiduciary relationship
thereby established.
(G) A director or officer who is in any way, whether directly or
indirectly, interested in a contract or arrangement or proposed
contract or arrangement with the company shall, if his interest in
the contract or arrangement or proposed contract or arrangement is
material, declare the nature of his interest at the earliest
meeting of the Board at which it is practicable for him to do so
notwithstanding that the question of entering into the contract or
arrangement is not taken into consideration at that meeting. A
general notice to the Board given by a director or office to the
effect that by reason of the facts supplied therein, he is
<PAGE>
22
to be regarded as interested in any contract or arrangement which
may subsequently be made by the company, shall be sufficient
declaration of his interest under this Article, so far as
attributable to those facts, in relation to any contract or
arrangement so made; provided that no such general notice shall be
effective in relation to any contract or arrangement unless it is
given before the date on which the question of entering into the
contract or arrangement is first taken into consideration on behalf
of the Company.
(H) Any contract or arrangement in which a director or officer of the
company is interested shall be approved by a majority of the
disinterested directors or by the shareholders in general meeting
prior to the contract or arrangement being entered into. If the
contract or arrangement is to be the subject of a resolution of the
shareholders in general meeting, the shareholders shall be informed
of the nature of the director's or officer's interest prior to
voting on the resolutions.
(I) A contract or arrangement in which a director or officer is
interested shall not be void if entered into in breach of Article
79(G) provided that the contract or arrangement was fair to the
company at the time the contract or arrangement was approved by the
board or the shareholders in general meeting. The company may by
special resolution suspend or relax the provisions of this Article
to any extent or ratify any transaction not duly authorized by
reason of a contravention of this Article 79.
POWERS AND DUTIES OF THE BOARD
80. Subject to the provisions of the Stature, these Articles and to any
directions given by the company in general meeting, the business of the
company shall be managed by the board, which may pay all expenses
incurred in forming and registering the company and may exercise all
powers of the company (whether relating to the management of the
business of the company or not) which are not by the statute or by
these Articles required to be exercised by the company in general
meeting. No regulations made by the company in general meeting shall
invalidate any prior act of the Board which would have been valid if
such regulations had not been made. The general powers given by the
Article shall not be limited or restricted by any special authority or
power given to the Board by any other Article.
<PAGE>
23
81. The Board may exercise all the powers of the company to borrow money and
to mortgage or charge all or any part of the undertaking, property and
assets (present and future) and uncalled capital of the company and to
issue debentures and other securities, whether outright or as collateral
security for any debt, liability or obligation of the company or of any
third party.
82. The Board may establish local boards or agencies for managing any of the
affairs of the company, either in Hong Kong or elsewhere, and may appoint
any persons to be members of such local boards, or any managers or
agents, and may fix their remuneration. The Board may delegate to any
local board, manager or agent any of the powers, authorities and
discretions vested in or exercisable by the Board, with power to sub-
delegate, and may authorize the members of any local board or any of them
to fill any vacancies therein and to act notwithstanding vacancies. Any
such appointment or delegation may be made upon such terms and subject to
such conditions as the Board may think fit, and the Board may remove any
person appointed as aforesaid, and may revoke or vary such delegation,
but no person dealing in good faith and without notice of any such
revocation or variation shall be affected thereby.
83. The Board may by power of attorney appoint any company, firm or person or
any fluctuating body of person, whether nominated directly or indirectly
by the Board, to be the attorney or attorneys of the company for such
purposes and with such powers, authorities and discretions (not exceeding
those vested in or exercisable by the Board under these Articles) and for
such period and subject to such conditions as it may think fit, and any
such power of attorney may contain provisions for the protection and
convenience of persons dealing with any such attorney as the Board may
think fit and may also authorize any such attorney to sub-delegate all or
any of the powers, authorities and discretions vested in him.
84. The Board may entrust to and confer upon any director any of the powers
exercisable by it upon such terms and conditions and with such
restrictions as it thinks fit, and either collaterally with, or to the
exclusion of, its own powers, and may from time to time revoke or vary
all or any of them but no person dealing in good faith and without
notice of the revocation or variation shall be affected by it. A
majority of the Board may also from time to time appoint such officers
of the company as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions
as to
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24
disqualification and removal as the majority of the Board from time to
time prescribe.
85. The Company may exercise all the powers conferred by the Statute with
regard to having official seals and such powers shall be vested in the
Board.
86. Subject to the provisions of the statute, the company may keep an
overseas or local or other register in any place and the Board may make
and vary such regulations as it may think fit respecting the keeping of
any such register.
87. All cheques, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or Transferable or not, and all
receipts for moneys paid to the company shall be signed, drawn,
accepted, endorsed or otherwise executed, as the case may be, in such
manner as the Board shall from time to time determine.
88. The Board shall cause minutes or records to be made in books provided
for the purpose:
(i) of all appointments of officers made by the Board;
(ii) of the names of the directors present at such meeting of the Board
and at each meeting of each committee of the Board; and
(iii) of all resolutions and proceedings at all meetings of the Company
and of the Board and of any committee of the Board.
89. The Board on behalf of the Company may exercise all the powers of the
Company to grant pensions, annuities or other allowances and benefits in
favour of any person including any director or former director or the
relations, connections or dependants of any director or former director
provided that no pension, annuity or other allowance or benefit (except
such as may be provided for by any other Article) shall be granted to a
director or former director who has not been an Executive director or
held any other office or place of profit under the Company or any of its
subsidiaries or to a person who has no claim on the Company except as a
relation, connection or dependant of such a director or former director
without the approval of an ordinary resolution of the Company. A director
or former director shall not be accountable to the Company or the
shareholders for any benefit of any kind conferred under or pursuant to
this Article and the receipt of any such benefit
<PAGE>
25
shall not disqualify any person from being or becoming a director of
the Company.
PROCEEDINGS OF THE BOARD
90. The Board shall hold a regularly scheduled meeting at least once every
three calendar months unless otherwise determined by the Board but in
no event less often than once every fiscal year. All actions of the
Board shall require the affirmative vote of at least a majority of the
directors of the Board present at a duly convened meeting of the Board
at which a quorum is present; provided that, in the event there is a
vacancy on the Board and an individual has been nominated to fill such
vacancy, the first order of business shall be to fill such vacancy. Any
director may convene a board meeting by prior notice. Board meetings
shall be held in Hong Kong or such other location agreed by a majority
of the Board.
91. The Board shall receive quarterly and annual financial statements and
other appropriate reports concerning operations of the company and
other matters submitted to it. Such quarterly and annual financial
statements shall be prepared in quarterly and annual financial
statements shall be prepared in accordance with US GAAP and the annual
financial statements shall be reported on by the auditors appointed in
accordance with these Articles.
92. Notice of a meeting of the Board shall be given to a director not less
than ten Business Days before such meeting (or such shorter period as
all the directors consent to). Notice of a meeting of the Board shall
be deemed to be duly given to a director if it is given to him in
writing at his last known address or any other address given by him to
the Company for this purpose. Such notice shall be deemed to be duly
given or made if sent to him by fax (with confirmation in writing) to
the fax number given by him to the Company for this purpose, delivered
personally or sent by registered or certified mail (postage prepaid,
return receipt requested). A director absent or intending to be absent
from Hong Kong may request the Board that notices of meetings of the
Board shall during his absence be sent in writing to him at his last
known address or any other address given by him to the Company for this
purpose, but in the absence of any such request it shall not be
necessary to give notice of a meeting of the Board to any director who
is for the time being absent from Hong Kong. A director may waive
notice of any meeting either prospectively or retrospectively.
93. The quorum necessary for the transaction of the business of the Board
shall be a majority of the directors then in office. If a
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26
quorum is not present within sixty minutes of the appointed time for a
meeting, the meeting will automatically be adjourned to the same place
and at the same time the following week (or if such day is not a
Business Day, at the same time on the next following Business Day) or
such earlier time as a majority of the directors then present may
agree, and any four directors present at such adjourned meeting will
constitute a quorum. Any director who has resigned from the board may
continue to be present and to vote and be counted in the quorum on the
resolution to fill the vacancy caused by the resignation. Any director
who ceases to be a director at a meeting of the Board may continue to
be present and to act as a director and be counted in the quorum with
respect to any other resolutions until the termination of the meeting
of the Board if no other director objects, his replacement is not
present and if otherwise a quorum of directors would not be present.
94. The continuing directors or a sole continuing director may act
notwithstanding any vacancy in the Board but, if and so long as the
number of directors is reduced below any minimum number fixed by or in
accordance with these Articles, the continuing directors or director,
notwithstanding that the number of directors is below the number fixed
by or in accordance with these Articles as the quorum or that there is
only one continuing director, may act for the purpose of filling
vacancies in the Board or of summoning general meetings of the Company
but not for any other purpose.
95. The Board may elect a chairman and one or more deputy chairmen of its
meetings and determine the period for which they are respectively to
hold such office. If no chairman or deputy chairman is elected, or if
at any meeting neither the chairman nor any deputy chairman is present
within five minutes after the time appointed for holding the same, the
directors present may choose one of their number to be chairman of the
meeting.
96. A meeting of the Board at which a quorum is present shall be competent
to exercise all the powers, authorities and discretions for the time
being vested in or exercisable by the Board.
97. The Board shall create an audit committee, and may create such other
committees as it may determine (including an executive compensation
committee), delegate any of its powers, authorities and discretions to
committees, consisting of such person or persons as it thinks fit. The
composition of the audit committee shall comply with the then current
requirements of the National Association of Securities Dealers, Inc.
for so long as
<PAGE>
27
the company's equity securities are quoted on NASDAQ and/or the then
current requirements of any other securities exchange on which equity
securities of the Company are then listed. In addition, any committee of
the Board shall, in the exercise of the powers, authorities and
discretions so delegated, conform to any regulations which may be imposed
on it by the Board.
98. The meetings and proceedings of any committee consisting of two or more
directors shall be governed by the provisions contained in these Articles
for regulating the meetings and proceedings of the Board so far as the
same are applicable and are not superseded by any regulations imposed by
the Board under the last preceding Article.
99. Any director of the Board or any committee of the Board my participate in
a meeting of the Board or that committee by means of a conference
telephone or any communication equipment which allows all persons
participating in the meeting to speak to and hear each other. A person so
participating shall be deemed to be present in person at the meeting and
shall be entitled to vote or be counted in a quorum accordingly. Such a
meeting shall be deemed to take place where the largest group of these
participating is assembled, or, if there is no such group, where the
chairman of the meeting is.
100. A resolution in writing signed by all the directors for the time being
entitled to receive notice of a meeting of the Board (provided that number
is sufficient to constitute a quorum) or by all the members of a committee
for the time being shall be as valid and effectual as a resolution passed
at a meeting of the Board or, as the case may be, of such committee
properly called and constituted. The resolution may be contained in one
document or in several documents in like form each signed by one or more
of the directors or members of the committee concerned. A telex or
facsimile sent by a director shall be deemed to be a document signed by
him for the purpose of this Article.
101. All acts done by the Board or by any committee or by any person acting as
a director or member of a committee shall, notwithstanding that it is
afterwards discovered that there was some defect in the appointment of any
member of the Board or committee or person so acting or that they or any
of them were disqualified or had vacated office, be as valid as if each
such person had been duly appointed and was qualified and had continued to
be a director or member of such committee.
<PAGE>
28
SECRETARY
102. One or more Secretaries may be appointed by the Board for such term, at
such remuneration and upon such conditions as it may think fit; any
Secretary so appointed may be removed by the Board.
103. Any provision of the Statute or these Articles requiring or authorizing a
thing to be done by or to a director and the secretary shall not be
satisfied by its being done by or to the same person acting both as
director and as, or in place of, the Secretary.
THE SEAL
104. (A) The Board shall provide for the custody of the Seal. The Seal shall
only be used by the authority of the Board or of a committee of the
Board authorized by the Board in that behalf. Subject as otherwise
provided in these Articles, and to any resolution of the Board or of
a committee of the Board dispensing with the requirement for
signature on any occasion, any instrument to which the Seal is
affixed shall be signed by one director or by such other person or
persons as the Board may approve.
(B) The Company shall be entitled to exercise the powers conferred by the
Statute or any amendment or re-enactment thereof to use an official
seal in any country or place where it carries on business.
DIVIDENDS AND OTHER PAYMENTS
105. Subject to the Statute, the Company in general meeting may from time to
time declare dividends to be paid to the Shareholders according to their
rights and interests in the profits, but no dividend shall be declared in
excess of the amount recommended by the Board.
106. Except in so far as the rights attaching to, or the terms of issue of, any
Share otherwise provide:
(i) all dividends shall be declared and paid according to the amounts
paid up on the shares in respect of which the dividend is paid, but
no amount paid up on a share in advance of calls shall be treated for
the purpose of this Article as paid up on the share; and
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29
(ii) all dividends shall be apportioned and paid pro rata according to the
amounts paid up on the Shares during any portion or portions of the
period in respect of which the dividend is paid.
107. The Board may from time to time pay to the Shareholders such interim
dividends as appear to the Board to be justified by the position of the
Company; the Board may also pay any fixed dividend which is payable on any
shares of the Company half-yearly or on any other dates, whenever such
position in the opinion of the Board, justifies such payment.
108. The Board may deduct from any dividend or other moneys payable to a
Shareholder by the Company on or in respect of any Shares all sums of
money (if any) presently payable by him to the Company on account of calls
or otherwise in respect of shares of the Company.
109. No dividend or other moneys payable by the Company on or in respect of any
Share shall bear interest against the Company.
110. Any dividend, interest or other sum payable in cash to the holder of
Shares may be paid by cheque or warrant sent through the post addressed to
the holder at his registered address or, in the case of joint holders,
addressed to the holder whose name stands first in the Register in respect
of the Shares at his registered address as appearing in the Register or
addressed to such person and at such address as the holder or joint
holders may in writing direct. Every cheque or warrant shall, unless the
holder or joint holders otherwise direct, be made payable to the order of
the holder or, in the case of joint holders, to the order of the holder
whose name stands first on the Register in respect of such Shares, and
shall be sent at his or their risk and payment of the cheque or warrant by
the bank on which it is drawn shall constitute a good discharge to the
Company. Any one of two or more joint holders may give effectual receipts
for any dividends or other moneys payable or property distributable in
respect of the shares held by them.
111. Any dividend unclaimed after a period of six years from the date when it
was declared shall be forfeited and shall revert to the company and the
payment by the Board of any unclaimed dividend, interest or other sum
payable on or in respect of a share into a separate account shall not
constitute the Company a trustee in respect of it.
112. Any general meeting declaring a dividend may by ordinary resolution, upon
the recommendation of the Board, direct payment
<PAGE>
30
or satisfaction of such dividend wholly or in part by the distribution of
specific assets, and in particular of paid up shares or debentures of any
other company, and the Board shall give effect to such direction, and
where any difficulty arises in regard to the distribution the Board may
settle it as it thinks expedient and in particular may issue fractional
certificates or authorise any person to sell and Transfer any fractions or
may ignore fractions altogether and may fix the value for distribution
purposes of any such specific assets and may determine that cash payments
shall be made to any Shareholders upon the footing of the value so fixed
in order to secure equality of distribution and may vest any such specific
assets in trustees, as may seem expedient to the Board.
RESERVES
113. The Board may, before recommending any dividend, set aside out of the
profits of the Company such sums as it thinks proper as reserves which
shall, at the discretion of the Board, be applicable for any purpose to
which the profits of the Company may be properly applied and pending such
application may, also at such discretion, either be employed in the
business of the Company or be invested in such investments as the Board
may from time to time think fit. The Board may also without placing the
same to reserve carry forward any profits which it may think it prudent
not to distribute.
CAPITALISATION OF PROFITS
114. The Company may, upon the recommendation of the Board, at any time and
from time to time pass an ordinary resolution to the effect that it is
desirable to capitalise all or any part of any amount for the time being
standing to the credit of any reserve or fund which is available for
distribution or to the credit of any Share premium account or any capital
redemption reserve fund and accordingly that the amount to be capitalised
be set free for distribution among the Shareholders or any class of
Shareholders who would be entitled to it if it was distributed by way of
dividend and in the same proportions, on the footing that it is not paid
in cash but is applied either in or towards paying up the amounts for the
time being unpaid on any shares in the Company held by such Shareholders
respectively or in payment up in full of unissued Shares, debentures or
other obligations of the company, to be allotted and distributed credited
as fully paid among those Shareholders, or partly in one way and partly in
the other, and the Board shall give effect to such resolution, provided
that, for the purposes of this Article, a share premium account and a
capital redemption reserve fund may to
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31
be applied only in the paying up of unissued Shares to be issued to such
Shareholders credited as fully paid.
115. Where any difficulty arises in regard to any distribution under the last
preceding Article the Board may settle the matter as it thinks expedient
and in particular may issue fractional certificates or authorize any
person to sell and Transfer any fractions or may resolve that the
distribution should be as nearly as may be practicable in the correct
proportion but not exactly so or may ignore fractions altogether, and may
determine that cash payments shall be made to any Shareholders in order to
adjust the rights of all parties, as may seem expedient to the Board. The
Board may appoint any person to sign on behalf of the persons entitled to
participate in the distribution any contract necessary or desirable for
giving effect thereto and such appointment shall be effective and binding
upon the Shareholders.
SUBSCRIPTION RIGHTS RESERVE
116. (A) If, so long as any of the rights attached to any warrants issued by
the Company to subscribe for shares of the Company shall remain
exercisable, the Company does any act or engages in any transaction
which, as a result of any adjustments to the subscription price in
accordance with the provisions of the conditions of the warrants,
would reduce the subscription price to below the par value of a share
then the following provisions shall apply:
(i) as from the date of such act or transaction the Company shall
establish and thereafter (subject as provided in this Article)
maintain in accordance with the provisions of this Article a
reserve (the "subscription Right Reserve") the amount of which
shall at no time be less than the sum which for the time being
would be required to be capitalized and applied in paying up
in full the nominal amount of the additional shares required
to be issued and allotted credited as fully paid pursuant to
sub-paragraph (iii) of this paragraph (A) on the exercise in
full of all the subscription rights outstanding and shall
apply the subscription right Reserve in paying up such
additional shares in full as and when the same are allotted;
(ii) the Subscription Right Reserve will not be used for any
purpose other than that specified above until all other
reserves of the Company (other than share
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32
premium account and capital redemption reserve) have been used
and will then only be used to make good losses of the Company
if and so far as is required by law;
(iii) upon the exercise of all or any of the subscription rights
represented by any warrant, the relevant subscription rights
shall be exercisable in respect of a nominal amount of shares
equal to the amount in cash which the holder of such warrant
is required to pay on exercise of the subscription rights
represented thereby (or as the case may be, the relevant
portion thereof in the event of a partial exercise of the
subscription rights) and, in addition, there shall be allotted
in respect of such subscription rights to the exercising
warrantholder, credited as fully paid, such additional nominal
amount of shares as is equal to the difference between:
(a) the said amount in cash which the holder of such
warrant is required to pay on exercise of the
subscription rights represented thereby (or, as the
case may be, the relevant portion thereof in the event
of a partial exercise of the subscription rights); and
(b) the nominal amount of shares in respect of which such
subscription rights would have been exercisable having
regard to the provisions of the conditions of the
warrants, had it been possible for such subscription
rights to represent the right to subscribe for shares
at less than par and immediately upon such exercise so
much of the sum standing to the credit of the
Subscription Right Reserve as is required to pay up in
full such additional nominal amount of shares shall be
capitalized and applied in paying up in full such
additional nominal amount of Shares which shall
forthwith be allotted credited as fully paid to the
exercising warrantholder;
(iv) if upon the exercise of the subscription rights represented by
any warrant the amount standing to the credit of the
Subscription Right Reserve is not sufficient to pay up in full
such additional nominal amount of shares equal to such
difference as
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33
aforesaid to which the exercising warrantholder is entitled,
the Directors shall apply any profits or reserves then or
thereafter becoming available (including to the extent
permitted by law, share premium account and capital redemption
reserve) for such purpose until such additional nominal amount
of shares is paid up and allotted as aforesaid and until such
time no dividend and until such time no dividend or other
distribution shall be paid or made on the shares. Pending such
payment up and allotment the exercising warrantholder shall be
issued by the Company with a certificate evidencing his right
to the allotment of such additional nominal amount of shares.
The rights represented by any such certificate shall be in
registered form and shall be transferable in whole or in part
in units of one share in the like manner as the shares for the
time being transferable, and the Company shall make such
arrangements in relation to the maintenance of a register
therefor and other matters in relation thereto as the
Directors may think fit and adequate particulars thereof shall
be known to each relevant exercising warrantholder upon the
issue of such certificate.
(B) Shares allotted pursuant to the provisions of this Article shall
rank pari passu in all respects with the other shares allotted on
the relevant exercise of the subscription rights represented by
the warrant concerned.
(C) Notwithstanding anything contained in paragraph (A) of this
Article no fraction of a share shall be allotted on exercise of
the subscription rights.
(D) The provisions of this Article as to the establishment and
maintenance of the Subscription Right Reserve shall not be altered
or added to in any way which would vary or abrogate, or which
would have the effect of varying or abrogating, the provisions for
the benefit of any warrantholder or class of warrantholders under
this Article without the sanction of a special resolution of such
warrantholders or class of warrantholders.
(E) A certificate or report by the auditors for the time being of the
Company as to whether or not the Subscription Right Reserve is
required to be established and maintained and if so the amount
thereof so required to be established and maintained, as to the
purposes for which the Subscription Right Reserve has been used,
as to the extent to which it
<PAGE>
34
has been used to make good losses of the Company, as to the
additional nominal amount of shares required to be allotted to an
exercising warrantholder credited as fully paid and as to any
other matter concerning the Subscription Right Reserve shall (in
the absence of manifest error) be conclusive and binding upon the
Company and all warrantholders.
RECORD DATES
117. Notwithstanding any other provision of these Articles the Company or the
Board may fix any date as the record date for any dividend, distribution,
allotment or issue and such record date may be on or at any time before or
after any date on which such dividend, distribution, allotment or issue is
declared, paid or made.
ACCOUNTING RECORDS
118. The Board shall cause to be kept accounting records sufficient to give a
true and fair view of the state of the Company's affairs and to show and
explain its transactions, in accordance with the Statute.
119. The accounting records shall be kept at the Office or at such other place
or places as the Board may think fit and shall always be open to
inspection by the officers of the Company. No Shareholder (other than an
officer of the Company) shall have any right of inspecting any accounting
record or book or document of the Company except as conferred by the
Statute or authorized by the Board.
120. A copy of every balance sheet and profit and loss account, including every
document required by law to be annexed to them, which is to be laid before
the Company in general meeting, together with a copy of the Auditors'
report, shall be sent to each Shareholder.
AUDIT
121. (A) 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.
(B) 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
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35
remuneration of any Auditor appointed by the Directors under this
Article may be fixed by the Directors.
(C) 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.
(D) 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
Shareholders, make a report on the accounts of the Company in
general meeting during their tenure of office.
SERVICE OF NOTICES AND OTHER DOCUMENTS
122. Any notice of other document (including a Share certificate) may be served
on or delivered to any Shareholder by the Company either personally or by
sending it through the post in a prepaid letter addressed to such
Shareholder at his registered address as appearing in the Register or by
delivering it to or leaving it at such registered address addressed as
aforesaid or, in the case of any notice, by sending a telex or facsimile
message to the telex or facsimile address for the time being published as
belonging to such Shareholder. In the case of joint holders of a Share,
service or delivery of any notice or other document on or to one of the
joint holders shall for all purposes be deemed a sufficient service on or
delivery to all the joint holders.
123. Any shareholder described in the Register by an address not within Hong
Kong who shall, from time to time, give to the Company an address within
Hong Kong at which notice may be served upon him shall be entitled to have
notices served upon his at that address.
124. Any notice, if given by telex or facsimile, shall be deemed to have been
served on the day following the dispatch of the facsimile or telex
message. Any notice or other document, if sent by post, shall be deemed to
have been served or delivered on the day after the day when it was put in
the post and in proving such service or delivery it shall be sufficient to
prove that the notice or document was properly addressed, stamped and put
in the post. Any notice or other document delivered or left at a
registered address otherwise than by post shall be deemed
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36
to have been served or delivered on the day on which it was so delivered
or left.
125. Any notice or other document delivered or sent by post to or left at the
registered address of any Shareholder in pursuance of these Articles
shall, notwithstanding that such Shareholder is then dead or bankrupt or
that any other event has occurred, and whether or not the Company has
notice of the death or bankruptcy or other event, be deemed to have been
duly served or delivered in respect of any Share registered in the name of
such Shareholder as sole or joint holder unless his name shall, at the
time of the service or delivery of the notice or document, have been
removed from the Register as the holder of the Share and such service or
delivery shall for all purposes be deemed a sufficient service or delivery
of such notice or document on all persons interested (whether jointly with
or as claiming through or under him) in the Share.
DESTRUCTION OF DOCUMENTS
126. The Company may destroy:
(i) any Share certificate which has been cancelled at any time after
the expiry of one year from the date of cancellation;
(ii) any dividend mandate or any variation or cancellation thereof or
any notification of change of name or address at any time after the
expiry of two years from the date such mandate, variation,
cancellation or notification was recorded by the Company;
(iii) any Instrument of Transfer of Shares which has been registered at
any time after the expiry of twelve years from the date of
registration; and
(iv) any other document on the basis of which any entry in the Register
is made at any time after the expiry of twelve years from the date
an entry in the Register was first made in respect of it;
and it shall conclusively be presumed in favour of the Company that every
share certificate so destroyed was a valid certificate duly and properly
cancelled and that every Instrument of Transfer so destroyed was a valid
certificate duly and properly cancelled and that every Instrument of
Transfer so destroyed was a valid and effective instrument duly and
properly registered and that every other document destroyed hereunder was
a valid and effective document in accordance with the recorded particulars
thereof in the books or records of the Company, Provided always that:
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37
(i) the foregoing provisions of this Article shall apply only to the
destruction of a document in good faith and without express notice
to the Company that the preservation of such document was relevant
to a claim;
(ii) nothing contained in this Article shall be construed as imposing
upon the Company any liability in respect of the destruction of any
such document before the period mentioned in this Article has
elapsed or in any case where the conditions of proviso (i) above
are not fulfilled; and
(iii) references in this Article to the destruction of any document
include references to its disposal in any manner.
WINDING UP
127. The Company may resolve by Special Resolution that it shall be would up.
128. If the Company shall be would up, the liquidator may, with the sanction of
a special resolution of the Company and any other sanction required by the
Statute;
(i) divide amongst the Shareholders 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 and may
determine how the division shall be carried out as between the
Shareholders or different classes of Shareholders, or
(ii) 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 no Shareholder shall be compelled to accept any Shares or other assets
upon which there is any liability.
INDEMNITY
129. (A) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Company) by reason of the fact that he is or
was a director or officer of the Company, or that such director or
officer is or was serving at the request of the Company
<PAGE>
38
as a director, officer, employee or agent of another Company,
partnership, joint venture, trust or other enterprise (collectively
"Agent"), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in the best
interest of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a pleas of no
contest or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in the best interests of
the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(B) The Company may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in the Company's favor by reason of the fact
that he is or was an Agent (as defined in Article 129(A)) against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in to the best interests of the Company
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the Company unless and only to the extent
that the Grand Court of the Cayman Islands or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Grand Court of
the Cayman Islands or such other court shall deem proper.
(C) To the extent that an Agent of the Company has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Articles 129(A), or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys'
<PAGE>
39
fees) actually and reasonably incurred by him in connection
therewith.
(D) Any indemnification under Articles 129 (A) or (B) (unless ordered
by a court) shall be made by the Company only as authorized in the
specific case upon a determination that the indemnification of the
Agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Articles 129 (A) or
(B). Such determination shall be made (I) by the Board of Directors
or an executive committee of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if
such quorum is not obtainable, upon advice by independent legal
counsel in a written opinion to the Company or (iii) by the
Shareholders.
(E) Expenses incurred in defending a civil or criminal action, suit or
proceeding referred to in Article 129 (A) shall be paid by the
Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company
as authorized in this Article 129.
(F) The indemnification and advancement of expenses provided or granted
pursuant to the other provisions of this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any Article, resolution of Shareholders or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office.
(G) The Company may purchase and maintain insurance on behalf of any
person who is or was an Agent of the Company against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company has
indemnified him against such liability under the provisions of this
Article 129.
(H) The indemnification and advancement of expenses provided by, or
granted to, this Article 129 shall continue to apply to an Agent of
the Company upon a merger or consolidation or amalgamation of the
Company in respect of any acts done by him as Agent to the Company
prior to the merger or consolidation or amalgamation.
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40
(I) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 129 shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(J) The Company shall not be liable to indemnify any Agent under this
Article 129 (i) for any amounts paid in settlement of any action or
claim effected without the Company's written consent, which consent
shall not be unreasonably withheld; or (ii) for any judicial award
if the Company was not given a reasonable and timely opportunity,
at its expense, to participate in the defense of such action.
(K) For purposes of this Article 129 no person appointed or employed by
the Company as an auditor is an officer or Agent of the Company.
CERTIFIED TO BE A TRUE AND CORRECT COPY
SIG. /s/ Renda S. Cornwall
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RENDA S. CORNWALL
Asst. Registrar of Companies
Date: 28 July, 2000
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[Registrar's seal omitted]
