TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP. 291)
ARTICLES OF ASSOCIATION
OF
ASIA PROPERTIES INVESTMENTS, INC.
INTERPRETATION
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1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following table
shall bear the meanings set opposite them respectively in the second column
thereof.
WORDS MEANINGS
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CAPITAL The sum of the aggregate par value of all outstanding shares
with par value of the Company and shares with par value held
by the Company as treasury shares plus
a. the aggregate of the amounts designated as capital of
all outstanding shares without par value of the Company
and
b. the amounts as are from time to time transferred from
surplus to capital by a resolution of directors.
MEMBER A person who holds shares in the Company.
PERSON An individual, a corporation, a trust, the estate of a Deceased
individual, a partnership or an unincorporated association of
persons.
RESOLUTION OF
DIRECTORS
a. a resolution approved at a duly constituted meeting of
directors of the Company or of a committee of directors
of the Company by the affirmative vote of a simple
majority of the directors present at the meeting who
voted and did not abstain; or
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b. a resolution consented to in writing by all directors
or of all members of the committee, as the case may be.
Except that where a director is given more than one vote, he
shall be counted by the number of votes he casts for the purpose
of establishing a majority.
RESOLUTION OF
MEMBERS
a. A resolution approved at a duly convened and constituted
meeting of the members of the Company by the affirmative
vote of
i a simple majority of the votes of the shares entitled
to vote thereon which were present at the meeting and
were voted and did not abstain, or
ii a simple majority of the votes of each class or series
of shares which were present at the meeting and
entitled to vote thereon as a class or series and were
voted and did not abstain and of a simple majority of
the votes of the remaining shares entitled to vote
thereon which were present at the meeting and were
voted and did not abstain; or
b. a resolution consented to in writing by
i an absolute majority of the votes of shares entitled to
vote thereon, or
ii an absolute majority of the votes of each class or
series of shares entitled to vote thereon as a class or
series and of an absolute majority of the votes of the
remaining shares entitled to vote thereon.
SECURITIES Shares and debt obligations of every kind, and options, warrants
and rights to acquire shares, or debt obligations.
SURPLUS The excess, if any, at the time of the determination of the total
assets of the Company over the aggregate of its total
liabilities, as shown in its books of account, plus the Company's
capital.
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THE MEMORANDUM The Memorandum of Association of the Company as
originally registered or as from time to time amended.
THE ACT The International Business Companies Act (Cap. 291)
including any modification, extension, re-enactment
or renewal thereof and any regulations made thereunder
THE SEAL Any Seal which has been duly adopted as the Seal of
the Company.
THESE ARTICLES These Articles of Association as originally registered
or as from time to time amended.
TREASURY SHARES Shares in the Company that were previously issued but
were repurchased, redeemed or otherwise acquired by the
Company and not canceled.
"Written" or any term of like import includes words typewritten, printed,
painted, engraved, lithographed, photographed or represented or reproduced
by any mode of representing or reproducing words in a visible form,
including telecopier, telex, telegram, cable or other form of writing
produced by electronic communication.
Save as aforesaid any words or expressions defined in the Act shall bear
the same meaning in these Articles.
Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall, where the context
admits, include the others.
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A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and not
the number of members who actually voted and a reference to shares being
present at a meeting shall be given a corresponding construction.
A reference to money in these Articles is a reference to the currency of
the United States of America unless otherwise stated.
REGISTERED SHARES
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2. At the request of any member holding registered shares in the Company the
Company shall issue a certificate signed by a director or officer of the
Company under the Seal of the Company specifying the number and type of
share or shares held by him and the signature of the director or officer
and the Seal may be facsimiles. The shares need not bear separate
distinctive numbers.
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3. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless from
any loss or liability which it or they may incur by reason of wrongful or
fraudulent use or representation made by any person by virtue of the
possession thereof. If a share certificate for registered shares is worn
out or lost it may be renewed on production of the worn out certificate or
on satisfactory proof of its loss together with such indemnity as may be
required by a resolution of directors.
4. If several persons are registered as joint holders of any shares, any one
of such persons may give an effectual receipt for any dividend payable in
respect of such shares.
SHARES, AUTHORISED CAPITAL AND CAPITAL
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5. Subject to the provisions of these Articles and any resolution of members
the unissued shares of the Company shall be at the disposal of the
directors who may without prejudice to any rights previously conferred on
the holders of any existing shares or class or series of shares, offer,
allot, grant options over or otherwise dispose of the shares to such
persons, at such times and upon such terms and conditions as the Company
may by resolution of directors determine.
6. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or other
binding obligation to contribute money or property or any combination of
the foregoing as shall be determined by a resolution of directors.
7. Shares in the Company may be issued for such amount of consideration as the
directors may from time to time by resolution of directors determine,
except that in the case of shares with par value, the amount shall not be
less than the par value, and in the absence of fraud the decision of the
directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved.
The consideration in respect of the shares constitutes capital to the
extent of the par value and the excess constitutes surplus.
8. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company, shall
be treated for all purposes as having been issued for money equal to the
consideration received or deemed to have been received by the Company in
respect of the other share, debt obligation or security.
9. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the Company
may by resolution of directors determine.
10. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
<PAGE>
11. Upon the issue by the Company of a share without par value, if an amount is
stated in the Memorandum to be authorised capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except that
the directors must designate as capital an amount of the consideration that
is at least equal to the amount that the share is entitled to as a
preference, if any, in the assets of the Company upon liquidation of the
Company.
12. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares of
equal value but no purchase, redemption or other acquisition shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business and
the realisable value of the assets of the company will not be less than the
sum of its total liabilities, other than deferred taxes, as shown in the
books of account, and its capital and, in the absence of fraud, the
decision of the directors as to the realisable value of the assets of the
Company is conclusive, unless a question of law is involved.
13. A determination by the directors under the preceding Article is not
required where shares are purchased, redeemed or otherwise acquired.
a. pursuant to a right of a member to have his shares redeemed or to have
his shares exchanged for money or other property of the Company;
b. by virtue of a transfer of capital pursuant to Article 30;
c. by virtue of the provisions of Section 83 of the Act; and
d. pursuant to an order of the court.
14. Shares that the Company purchases, redeems or otherwise acquires pursuant
to Article 12 may be canceled or held as treasury shares unless the shares
are purchased, redeemed or otherwise acquired out of capital and would
otherwise infringe upon the requirements of Article 31, 32 and 33, or to
the extent that such shares are in excess of 80 percent of the issued
shares of the Company, in which case they shall be canceled but they shall
be available for reissue. Upon the cancellation of a share, the amount
included as capital of the Company with respect to that share shall be
deducted from the capital of the Company.
15. Where shares in the Company are held by the Company as treasury shares or
are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the election
of directors of the other company, such shares of the Company are not
entitled to vote or to have dividends paid thereon and shall not be treated
as outstanding for any purpose except for purposes of determining the
capital of the Company.
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16. No notice of a trust, whether expressed, implied or constructive, shall be
entered in the share register.
LIEN
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17. The Company shall have a first and paramount lien on every share issued for
a promissory note or for any other binding obligation to contribute money
or property or any combination thereof to the Company, and the Company
shall also have a first and paramount lien on every share standing
registered in the name of a member, whether singly or jointly with any
other person or persons, for all the debts and liabilities of such member
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 member, 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 member or his estate and any other
person, whether a member of the Company or not. The Company's lien on a
share shall extend to all dividends payable thereon. The directors 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.
18. In the absence of express provisions regarding sale in the promissory note
or other binding obligation to contribute money or property, the Company
may sell, in such manner as the directors may by resolution of directors
determine, 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 nor until the expiration of twenty one days after a notice in
writing, stating and demanding payment of the sum presently payable and
giving notice of the intention to sell in default of such payment, has been
served on the holder for the time being of the share.
19. 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 promissory
note or other binding obligation to contribute money or property or any
combination thereof in respect of which the lien exists so far as the same
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 holder of the share immediately before such
sale. For giving effect to any such sale the directors may authorise 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
share be affected by any irregularity or invalidity in the proceedings in
reference to the sale.
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TRANSFER OF SHARES
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20. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred in such manner as the Directors may from time to
time decide.
21. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
22. Subject to any limitations in the Memorandum, the Company must on the
application of the transferor or transferee of a registered share in the
Company enter in the share register the name of the transferee of the share
save that the registration of transfers may be suspended and the share
register closed at such times and for such periods as the Company may from
time to time by resolution of directors determine provided always that such
registration shall not be suspended and the share register closed for more
than 60 days in any period of 12 months.
TRANSMISSION OF SHARES
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23. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognised by the Company as having any title to his share but they
shall not be entitled to exercise any rights as a member of the Company
until they have proceeded as set forth in the next following three
regulations.
24. The production to the Company of any document which is evidence of probate
of the will, or letters of administration of the estate, or confirmation as
executor, of a deceased member or of the appointment of a guardian of an
incompetent member or the trustee of a bankrupt member shall be accepted by
the Company even if the deceased, incompetent or bankrupt member is
domiciled outside the British Virgin Islands if the document evidencing the
grant of probate or letter of administration, confirmation as executor,
appointment as guardian or trustee in bankruptcy is issued by a foreign
court which has competent jurisdiction in the matter. For the purpose of
establishing whether or not a foreign court is of competent jurisdiction
the director may obtain appropriate legal advice. The directors may also
require an indemnity to be given by the executor, administrator, guardian
or trustee in bankruptcy.
25. Any person becoming entitled by operation of law or otherwise to a share or
shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced as
may reasonably be required by the directors. An application by any such
person to be registered as a member shall for all purposes be deemed to be
a transfer of shares and the directors shall treat it as such.
<PAGE>
26. Any person who has become entitled to a share or shares in consequence of
the death, incompetence or bankruptcy of any member may, instead of being
registered himself, request in writing that some person to be named by him
be registered as the transferee of such share or shares and such request
shall likewise be treated as if it were a transfer.
27. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and the
circumstances of the case.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
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28. The Company may by a resolution of directors amend the Memorandum to
increase or reduce its authorised capital and in connection therewith the
Company may in respect of any unissued shares increase or reduce the number
of such shares, increase or reduce the par value of any such shares or
effect any combination of the foregoing.
29. The Company may amend the Memorandum to:
a. divide the shares, including issued shares, of a class or series into
a larger number of shares of the same class or series; or
b. combine the shares, including issued shares, of a class or series into
a smaller number of shares of the same class or series, provided,
however, that where shares are divided or combined under a. or b. of
this Article, the aggregate par value of the new shares must be equal
to the aggregate par value of the original shares.
30. The capital of the Company may by a resolution of directors be increased by
transferring an amount of the surplus of the Company to capital.
31. Subject to the provisions of the two next succeeding Articles the capital
of the Company may by resolution of directors be reduced by:
a. returning to members any amount received by the Company upon the issue
of any of its shares, the amount being surplus to the requirements of
the Company; or
b. canceling any capital that is lost or not represented by assets having
a realisable value; or
c. transferring capital to surplus for the purpose of purchasing,
redeeming or otherwise acquiring shares that the directors have
resolved to purchase, redeem or otherwise acquire.
32. No reduction of capital shall be effected that reduces the capital of the
Company to an amount that immediately after the reduction is less than the
aggregate par value of all outstanding shares with par value and all shares
with par value held by the Company as treasury shares and the aggregate of
the amounts designated as capital of all outstanding shares without par
value and all shares without par value held by the Company as treasury
shares that are entitled to a preference, if any, in the assets of the
Company upon liquidation of the Company.
<PAGE>
33. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its business
and that the realisable assets of the Company will not be less than its
total liabilities, other than deferred taxes, as shown in the books of the
Company and its remaining capital, and, in the absence of fraud, the
decision of the directors as to the realisable value of the assets of the
Company is conclusive, unless a question of law is involved.
MEETINGS AND CONSENTS OF MEMBERS
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34. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside the
British Virgin Islands as the directors consider necessary or desirable.
35. Upon the written request of members holding 10 percent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
36. The directors shall give not less than 21 days notice of meetings of
members to those persons whose names on the date the notice is given appear
as members in the share register of the Company.
37. The directors may fix the date notice is given of a meeting of members as
the record date for determining those shares that are entitled to vote at
the meeting.
38. A meeting of members held in contravention of the requirement in Article 36
is valid:
a. if members holding not less than 90 percent of the total number of
shares entitled to vote on all matters to be considered at the
meeting, or 90 percent of the votes of each class or series of shares
where members are entitled to vote thereon as a class or series
together with not less than a 90 percent majority of the remaining
votes, have agreed to shorter notice of the meeting, or
b. if all members holding shares entitled to vote on all or any matters
to be considered at the meeting have waived notice of the meeting and
for this purpose presence at the meeting shall be deemed to constitute
waiver.
39. The inadvertent failure of the directors to give notice of a meeting to a
member, or the fact that a member has not received notice, does not
invalidate the meeting.
40. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
<PAGE>
41. The instrument appointing a proxy shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the person
named in such instrument proposes to vote.
42. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy. Only
members who are individuals may appoint proxies.
ASIA PROPERTIES INVESTMENTS, INC.
I/We. . . . . . . . . . . . being a member of the above
Company with shares HEREBY APPOINT . . . . . . . . of
. . . . . . . .or failing him . . . . .of. . . . . to be
my/our proxy to vote for me/us at the meeting of members
to be held on the...day of...at any adjournment thereof.
Signed this day of. . .19. . .
. . . . . . . .
Member
43. The following shall apply in respect of joint ownership of shares:
a. if two or more persons hold shares jointly each of them may be present
in person or by proxy at a meeting of members and may speak as a
member;
b. if only one of the joint owners is present in person or by proxy he
may vote on behalf of all joint owners; and
c. if two or more of the joint owners are present in person or by proxy
they must vote as one.
44. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
45. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50 percent
of the votes of the shares or class or series of shares entitled to vote on
resolutions of members to be considered at the meeting. If a quorum be
present, notwithstanding the fact that such quorum may be represented by
only one person then such person may resolve any matter and a certificate
signed by such person accompanied where such person by a proxy by a copy of
the proxy form shall constitute a valid resolution of members.
<PAGE>
46. If within two hours from the time appointed for the meeting a quorum is not
present, the meeting, if convened upon the requisition of members, shall be
dissolved; in any other case it shall stand adjourned to the next business
day at the same time and place or to such other time and place as the
directors may determine, and if at the adjourned meeting there are present
within one hour from the time appointed for the meeting in person or by
proxy not less than one third of the votes of the shares or each class or
series of shares entitled to vote on the resolutions to be considered by
the meeting, those present shall constitute a quorum but otherwise the
meeting shall be dissolved.
47. At every meeting of members, the Chairman of the Board of Directors shall
preside as chairman of the meeting. If there is no Chairman of the Board of
Directors or if the Chairman of the Board of Directors is not present at
the meeting, the members present shall choose some one of their number to
be the chairman. If the members are unable to choose a chairman for any
reason, then the person representing the greatest number of voting shares
present in person or by prescribed form of proxy at the meeting shall
preside as chairman failing which the oldest individual member or
representative of a member present shall take the chair.
48. The chairman may, with the consent of the meeting, adjourn any meeting from
time to time, and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
49. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any member
present in person or by proxy who disputes the announcement by the chairman
of the result of any vote may immediately following such announcement
demand that a poll be taken and the chairman shall thereupon cause a poll
to be taken. If a poll is taken at any meeting, the result thereof shall be
duly recorded in the minutes of that meeting by the chairman.
50. Any person other than an individual shall be regarded as one member and
subject to Article 45 the right of any individual to speak for or represent
such member shall be determined by the law of the jurisdiction where, and
by the documents by which, the person is constituted or derives its
existence. In case of doubt, the directors may in good faith seek legal
advice from any qualified person and unless and until a court of competent
jurisdiction shall otherwise rule, the directors may rely and act upon such
advice without incurring any liability to any member.
<PAGE>
51. Any person other than an individual which is a member of the Company may by
resolution of its directors or other governing body authorise such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of members of the Company, and the person so authorised
shall be entitled to exercise the same powers on behalf of the person which
he represents as that person could exercise if it were an individual member
of the Company.
52. The chairman of any meeting at which a vote is cast by proxy or on behalf
of any person other than an individual may call for a notarially certified
copy of such proxy or authority which shall be produced within 7 days of
being so requested or the votes cast by such proxy or on behalf of such
person shall be disregarded.
53. Directors of the Company may attend and speak at any meeting of members of
the Company and at any separate meeting of the holders of any class or
series of shares in the Company.
54. An action that may be taken by the members at a meeting may also be taken
by a resolution of members consented to in writing or by telex, telegram,
cable, facsimile or other written electronic communication, without the
need for any notice, but if any resolution of members is adopted otherwise
than by the unanimous written consent of all members, a copy of such
resolution shall forthwith be sent to all members not consenting to such
resolution.
DIRECTORS
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55. The first directors of the Company shall be elected by the subscribers to
the Memorandum. Thereafter, the directors shall be elected by the members
for such term as the members determine. The first directors may elect any
number of additional directors for such term as they may determine until
such time as the members shall elect or re-elect any one or more directors.
56. The minimum number of directors shall be one and the maximum number shall
be ten.
57. Each director shall hold office for the term, if any, fixed by resolution
of members or until his earlier death, resignation or removal.
58. A director may be removed from office, with or without cause, by a
resolution of members.
59. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from the
date the notice is received by the Company or from such later date as may
be specified in the notice.
60. A vacancy in the Board of Directors may be filled by a resolution of
members or by a resolution of a majority of the remaining directors.
<PAGE>
61. With the prior or subsequent approval by a resolution of members, the
directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
62. A director shall not require a share qualification, and may be an
individual or a company.
POWERS OF DIRECTORS
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63. The business and affairs of the Company shall be managed by the directors
who may pay all expenses incurred preliminary to and in connection with the
formation and registration of the Company and may exercise all such powers
of the Company as are noted by the Act or by the Memorandum or these
Articles required to be exercised by the members of the Company, subject to
any delegation of such powers as may be authorised by these Articles and to
such requirements as may be prescribed by a resolution of members; but no
requirement made by a resolution of members shall prevail if it be
inconsistent with these Articles nor shall such requirement invalidate any
prior act of the directors which would have been valid if such requirement
had not been made.
64. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company.
65. Every officer or agent of the Company has such powers and authority of the
directors, including the power and authority to affix the Seal, as are set
forth in these Articles or in the resolution of directors appointing the
officer or agent, except that no officer or agent has any power or
authority with respect to fixing the emoluments of directors.
66. Any director which is a body corporate may appoint any person its duly
authorised representative for the purpose of representing it at meetings of
the Board of Directors or with respect to unanimous written consents.
67. The continuing directors may act notwithstanding any vacancy in their body,
save that if their number is reduced below the number fixed by or pursuant
to these Articles as the necessary quorum for a meeting of directors, the
continuing directors or director may act only for the purpose of appointing
directors to fill any vacancy that has arisen for summoning a meeting of
members.
68. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments 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 shall from time to time be determined by
resolution of directors.
<PAGE>
PROCEEDINGS OF DIRECTORS
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69. The directors of the Company or any committee thereof may meet at such
times an in such manner and places within or outside the British Virgin
Islands as the directors may determine to be necessary or desirable.
70. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
71. A director shall be given not less than 48 hours notice of meetings of
directors, but a meeting of directors held without 48 hours notice having
been given to all directors shall be valid if all the directors entitled to
vote at the meeting who do not attend, waive notice of the meeting and for
this purpose, the presence of a director at a meeting shall constitute
waiver on his part. The inadvertent failure to give notice of a meeting to
a director, or the fact that a director has not received the notices, does
not invalidate the meeting.
72. A director may by a written instrument appoint an alternate who need not be
a director and an alternate is entitled to attend meetings in the absence
of the director who appointed him and to vote or consent in place of the
director.
73. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate not
less than one half of the total number of directors, unless there are only
2 directors in which case the quorum shall be 2.
74. If the Company shall have only one director the provisions herein contained
for meetings of the directors shall not apply but such sole director shall
have full power to represent and act for the Company in all matters as are
not by the Act or the Memorandum of these Articles required to be exercised
by the members of the Company and in lieu of minutes of a meeting shall
record in writing and sign a note or memorandum of all matters requiring a
resolution of directors. Such a note or memorandum shall constitute
sufficient evidence of such resolution for all purposes.
75. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Vice Chairman of the Board of Directors shall
preside. If there is no Vice Chairman of the Board of Directors or if the
Vice Chairman of the Board of Directors is not present at the meeting the
directors present shall choose some one of their number to be chairman of
the meeting.
76. An action that may be taken by the directors or a committee of directors at
a meeting may also be taken by a resolution of directors or a committee of
directors consented to in writing or by telex, telegram, cable, facsimile
or other written electronic communication by all directors or all members
of the committee as the case may be, without the need for any notice.
<PAGE>
77. The directors shall cause the following corporate records to be kept:
a. minutes of all meetings of directors, members, committees of
directors, committees of officers and committees of members;
b. copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees of
members; and
c. such other accounts and records as the directors by resolution of
directors consider necessary or desirable in order to reflect the
financial position of the Company.
78. The books, records and minutes shall be kept at the registered office of
the Company or at such other place as the directors determine.
79. The directors may, by a resolution of directors, designate one or more
committees, each consisting of one or more directors.
80. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are set
forth in the resolution of directors establishing the committee, except
that no committee has any power or authority either to amend the Memorandum
or these Articles or with respect to the matters requiring a resolution of
directors under Articles 60, 61 and 65.
81. The meetings and proceedings of each committee of directors consisting of 2
or more directors shall be governed mutatis mutandis by the provisions of
these Articles regulating the proceedings of directors so far as the same
are not superseded by any provisions in the resolution establishing the
committee.
OFFICERS
--------
82. The Company may by resolution of directors appoint officers of the Company
at such times as shall be considered necessary or expedient. Such officers
may consist of a Chairman of the Board of Directors, a Vice Chairman of the
Board of Directors, a President and one or more Vice Presidents,
Secretaries and Treasurers and such other officers as may from time to time
be deemed desirable. Any number of offices may be held by the same person.
83. The officers shall perform such duties as shall be prescribed at the time
of their appointment subject to any modification in such duties as may be
prescribed thereafter by resolution of directors or resolution of members,
but in the absence of any specific allocation of duties it shall be the
responsibility of the Chairman of the Board of Directors to preside at
meetings of directors and members, the Vice Chairman to act in the absence
of the Chairman, the President to manage the day to day affairs of the
company, the Vice President to act in order of seniority in the absence of
the President but otherwise to perform such duties as may be delegated to
them by the President, the Secretary to maintain the share register, minute
books and records (other than financial records) of the Company and to
ensure compliance with all procedural requirements imposed on the Company
by applicable law, and the Treasurer to be responsible for the financial
affairs of the Company.
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84. The emoluments of all officers shall be fixed by resolution of directors.
85. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by resolution
of directors. Any vacancy occurring in any office of the Company may be
filled by resolution of directors.
CONFLICT OF INTERESTS
---------------------
86. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest or
to whom any director is related, including as a director of that other
person, is void or voidable for this reason only or by reason only that the
director is present at the meeting of directors that approves the agreement
or transaction or that the vote or consent of the director is counted for
that purpose if the material facts of the interest of each director in the
agreement or transaction and his interest in or relationship to any other
party to the agreement or transaction are disclosed in good faith or are
known by the other directors.
87. A director who has an interest in any particular business to be considered
at a meeting of directors or members may be counted for purposes of
determining whether the meeting is duly constituted.
INDEMNIFICATION
---------------
88. Subject to the limitations hereinafter provided the Company may indemnify
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred in connection
with legal, administrative or investigative proceedings any person who:
a. is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the person
is or was a director, an officer or a liquidator of the Company; or
b. is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was acting
for, another company or partnership, joint venture, trust or other
enterprise.
89. Article 88 only applies to a person referred to in that Article if the
person acted honestly and in good faith with a view to the best interests
of the Company and, in the case of criminal proceedings, the person had no
reasonable cause to believe that his conduct was unlawful.
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90. The decision of the directors as to whether the person acted honestly and
in good faith and with a view to the best interests of the Company and as
to whether the person had no reasonable cause to believe that his conduct
was unlawful, is in the absence of fraud, sufficient for the purposes of
these Articles, unless a question of law is involved.
91. The termination of any proceedings by any judgement, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself, create
a presumption that the person did not act honestly and in good faith and
with a view to the best interests of the Company or that the person had
reasonable cause to believe that his conduct was unlawful.
92. If a person referred to in Article 88 has been successful in defense of any
proceedings referred to in that Article the person is entitled to be
indemnified against all expenses, including legal fees, and against all
judgements, fines and amounts paid in settlement and reasonably incurred by
the person in connection with the proceedings.
93. The Company may purchase and maintain insurance in relation to any person
who is or was a director, an officer or a liquidator of the Company, or who
at the request of the Company is or was serving as a director, an officer
or a liquidator of, or in any other capacity is or was acting for, another
company or a partnership, joint venture, trust or other enterprise, against
any liability asserted against the person and incurred by the person in
that capacity, whether or not the Company has or would have had the power
to indemnify the person against the liability under Article 88.
SEAL
----
94. The Company may have more than one seal and references herein to the Seal
shall be references to every seal which shall have been duly adopted by
resolution of directors. The directors shall provide for the safe custody
of the Seal and for an imprint thereof to be kept at the Registered Office.
Except as otherwise expressly provided herein the Seal when affixed to any
written instrument shall be witnessed and attested to by the signature of a
director or any other person so authorised from time to time by resolution
of directors. Such authorisation may be before or after the Seal is affixed
may be general or specific and may refer to any number of sealings. The
Directors may provide for a facsimile of the Seal and of the signature of
any director or authorised person which may be reproduced by printing or
other means on any instrument and it shall have the same force and validity
as if the Seal had been affixed to such instrument and the same had been
signed as hereinbefore described.
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DIVIDENDS
---------
95. The Company may by a resolution of directors declare and pay dividends in
money, shares, or other property but dividends shall only be declared and
paid out of surplus. In the event that dividends are paid in specie the
directors shall have responsibility for establishing and recording in the
resolution of directors authorising the dividends, a fair and proper value
for the assets to be so distributed.
96. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the
Company.
97. No dividend shall be declared and paid unless the directors determine that
immediately after the payment of the dividend the Company will be able to
satisfy its liabilities as they become due in the ordinary course of its
business and the realisable value of the assets of the Company will not be
less than the sum of its total liabilities, other than deferred taxes, as
shown in its books of account, and its capital. In the absence of fraud,
the decision of the directors as to the realisable value of the assets of
the Company is conclusive, unless a question of law is involved.
98. Notice of any dividend that may have been declared shall be given to each
member in manner hereinafter mentioned and all dividends unclaimed for 3
years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
99. No dividend shall bear interest as against the Company and no dividend
shall be paid on shares described in Article 15.
100. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
101. In the case of a dividend of authorised but unissued shares with par value,
an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
102. In the case of a dividend of authorised but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to the
amount that the shares are entitled to as a preference, if any, in the
assets of the Company upon liquidation of the Company.
103. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having a
proportionately smaller par value does not constitute a dividend of shares.
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ACCOUNTS
--------
104. The books of account if any shall be kept at the registered office of the
Company, or at such other place or places as the directors think fit.
105. The directors may, if they deem it fit, cause to be made out and may serve
on the members or lay before a meeting of members a profit and loss account
for a period in the case of the first account since the incorporation of
the Company and in any other case, since the preceding account, made to a
date not earlier than the date of the notice by more than twelve months,
and a balance sheet as at the date to which the profit and loss account is
made up.
106. A copy of any such profit and loss account and balance sheet shall be
served on every member in the manner and with similar notice to that
prescribed herein for calling a meeting of members or upon such shorter
notice as the members may agree to accept.
107. The Company may by a resolution of directors include in the computation of
surplus for any purpose the unrealised appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
AUDIT
-----
108. The Company may by resolution of members call for the accounts to be
examined by auditors.
109. The first auditors shall be appointed by resolution of directors;
subsequent auditors shall be appointed by a resolution of members.
110. The auditors may be members of the Company but no director or other officer
shall be eligible to be an auditor of the Company during his continuance in
office.
111. The remuneration of the auditors of the Company:
a. in the case of auditors appointed by the directors, may be fixed by
resolution of directors;
b. subject to the foregoing, shall be fixed by resolution of members.
112. The auditors shall examine each profit and loss account and balance sheet
required to be served on every member of the Company or laid before a
meeting of the members of the Company and shall state in a written report
whether or not:
a. in their opinion the profit and loss account and balance sheet give a
true and fair view respectively of the profit and loss for the period
covered by the accounts, and of the state of affairs of the Company at
the end of that period;
b. all the information and explanations required by the auditors have
been obtained.
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113. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
114. Every auditor of the Company shall have a right of access at all times to
the books of account and vouchers of the Company, and shall be entitled to
require from the directors and officers of the Company such information and
explanations as he thinks necessary for the performance of the duties of
the auditors.
115. The auditors of the Company shall be entitled to receive notice of, and to
attend any meetings of members of the Company at which the Company's profit
and loss account and balance sheet are to be presented.
NOTICES
-------
116. Any notice, information or written statement to be given by the Company to
members must be served in the case of members holding registered shares by
mail addressed to each member at the address shown in the share register
and in the case of members holding shares issued to bearer, in the manner
provided in the Memorandum.
117. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its registered
office, or by leaving it with, or by sending it by registered mail to, the
registered agent of the Company.
118. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing that
the summons, notice, order, document, process, information or written
statement was mailed in such time as to admit to its being delivered in the
normal course of delivery within the period prescribed for service and was
correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
--------------------------------
119. The directors may establish and maintain or procure the establishment and
maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving of
donations, gratuities, pensions, allowances or emoluments to all persons
who are or were at any time in the employment or service of the Company or
any company which is a subsidiary of the Company or is allied to or
associated with the Company or with any such subsidiary, or who are or were
at any time directors or officers of the Company or of any such other
company as aforesaid or who hold or held any salaried employment or office
in the Company or such other company, or any person in whose welfare the
Company or any such other company as aforesaid is or has been at any time
interested, and to the wives, widows, families and dependents of any such
person, and may make payments for or towards the insurance of any such
persons as aforesaid, and may do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid. Subject always
to the proposal being approved by resolution of members, a director holding
any such employment or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension allowance
or emolument.
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ARBITRATION
-----------
120. Whenever any difference arises between the Company on the one hand and any
of the members or their executors, administrators or assigns on the other
hand, touching the true intent and construction or the incidence or
consequences of these Articles or of the Act, touching anything done or
executed, omitted or suffered in pursuance of the Act or touching any
breach or alleged breach or otherwise relating to the premises or to these
Articles, or to any Act affecting the Company or to any of the affairs of
the Company, such difference shall, unless the parties agree to refer the
same to a single arbitrator, be referred to two arbitrators, one to be
chosen by each of the parties to the difference, and the arbitrators shall
before entering on the difference appoint an umpire.
121. If either party to the difference makes default in appointing an arbitrator
either originally or by way of substitution (in the event that an appointed
arbitrator shall die, be incapable of acting or refuse to act) for 10 days
after the other party has given him notice to appoint the same, such other
party may appoint an arbitrator to act as arbitrator of the defaulting
party.
VOLUNTARY WINDING UP AND DISSOLUTION
------------------------------------
122. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of directors.
CONTINUATION
------------
123. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
We, COVERDALE TRUST SERVICES LIMITED of P.O. Box 961, Road Town, Tortola,
British Virgin Islands for the purpose of incorporating an International
Business Company under the laws of the British Virgin Islands hereby subscribe
our name to these Articles of Association the 7th day of December, 1999 in the
presence of:
Witness: Subscriber:
. . . . . . . . . . . . . . . . . . . . . .
Road Town, Tortola COVERDALE TRUST SERVICES LIMITED
British Virgin Islands
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