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Exhibit 3.2
CAYMAN ISLANDS
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The Companies Law (2000 Revision)
Company Limited by Shares
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ARTICLES OF ASSOCIATION
OF
GARMIN LTD.
TABLE A
1. The regulations contained in Table A in the First Schedule to the Companies
Law shall not apply to the Company.
INTERPRETATION
2. In these Articles, unless there be something in the subject or context
inconsistent therewith:
(a) "these Articles" shall mean the present Articles of Association and
all supplementary, amended or substituted Articles for the time being
in force;
(b) "Audit Committee" shall mean the audit committee established pursuant
to Article 143;
(c) "Auditors" shall mean the persons appointed by the Company from time
to time to perform the duties of auditors of the Company;
(d) "Board" shall mean the majority of the Directors present and voting at
a meeting of Directors at which a quorum is present;
(e) "capital" shall mean the share capital from time to time of the
Company;
(f) "the Chairman" shall mean the Chairman appointed pursuant to Article
99 and includes Co-Chairman;
(g) "Common Shares" means the Common Shares in the capital of the Company
of par value US$0.01 each;
(h) "the Company" or "this Company" shall mean Garmin Ltd.;
(i) "the Companies Law" or "the Law" shall mean the Companies Law (2000
Revision) of the Cayman Islands and any amendments thereto or re-
enactments thereof for the
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time being in force and includes every other law incorporated
therewith or substituted therefor;
(j) "Directors" shall mean the directors from time to time of the Company;
(k) "dividend" shall include bonus dividends and distributions permitted
by the Law to be categorised as dividends;
(l) "dollars" and "US$" shall mean dollars legally current in the United
States;
(m) "electronic transmission" shall include telephone, telegram, telex,
cable, facsimile and electronic mail;
(n) "Exchange" shall mean any securities exchange or other system on which
the shares of the Company may be listed or otherwise authorised for
trading from time to time;
(o) "Independent Director" shall mean a person recognised as such by the
rules and regulations of the Exchange;
(p) "month" shall mean a calendar month;
(q) "ordinary resolution" shall mean a resolution passed by a simple
majority of the votes of such members 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 authorised
representatives, at a general meeting held in accordance with these
Articles;
(r) "paid up" shall mean paid up and/or credited as paid up;
(s) "Preferred Share" shall mean a Preferred Share in the capital of the
Company with a nominal or par value of US$1.00 having designations,
powers, preferences, privileges and participating, optional or special
rights, and the qualifications, limitations or restrictions thereof,
including, without limitations, dividend rights, conversion rights,
voting rights, terms of redemption and liquidation preferences as the
Directors shall in their sole discretion determine and the "Series A
Preferred Shares" shall mean the first series of Preferred Shares
authorised and issued by the Board;
(t) "principal register" shall mean the register of members of the Company
maintained at such place within or outside the Cayman Islands as the
Board shall determine from time to time;
(u) "the register" shall mean the principal register and any branch
registers;
(v) "registration office" shall mean the registered office for the time
being of the Company;
(w) "seal" shall include the common seal of the Company, the securities
seal or any
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duplicate seal adopted by the Company pursuant to these Articles;
(x) "Secretary" shall mean the person appointed as company secretary by
the Board from time to time;
(y) "share" shall mean a share in the capital of the Company;
(z) "shareholders" or "members" shall mean the persons who are duly
registered as the holders from time to time of shares in the register
including persons who are jointly so registered;
(aa) "special resolution" shall mean a resolution passed by not less than
seventy five per cent of the votes of such members 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 authorised
representatives, at a general meeting of which notice specifying the
intention to propose the resolution as a special resolution has been
duly given;
(bb) "subsidiary" and "holding company" shall have the meanings ascribed to
such terms in the Companies Act of the United Kingdom;
(cc) subject as aforesaid, any words defined in the Law shall, if not
inconsistent with the subject and/or context, bear the same meanings
in these Articles;
(dd) "writing" or "printing" shall include writing, printing, lithograph,
photograph, type-writing and every other mode of representing words or
figures in a legible and non-transitory form;
(ee) words importing either gender shall include the other gender and the
neuter;
(ff) words importing persons and the neuter shall include companies and
corporations and vice versa; and
(gg) words denoting the singular shall include the plural and words
denoting the plural shall include the singular.
3. The business of the Company may be commenced as soon after incorporation as
the Directors shall see fit, notwithstanding that part only of the shares
may have been allotted.
4. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and establishment
of the Company including the expenses of registration.
SHARE CAPITAL
5. The capital of the Company at the date of the adoption of these Articles is
US$6,000,000 divided into 500,000,000 Common Shares of a nominal or par
value of US$0.01 each and 1,000,000 Preferred Shares of a nominal or par
value of US$1.00 each.
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6. (a) Subject to the provisions of these Articles and to any direction that
may be given by the Company in general meeting and without prejudice to any
special rights conferred on the holders of any existing shares or attaching
to any class of shares, any share including the Preferred Shares may be
issued with or have attached thereto such preferred, deferred, qualified or
other special rights or restrictions, whether in regard to dividend,
voting, return of capital or otherwise, and to such persons at such times
and for such consideration as the Board may determine.
(b) (i) Preferred Shares may be issued from time to time in one or more
series, each of such series to have such voting powers (full or
limited or without voting powers), designations, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof as are
stated and expressed, or in any resolution or resolutions
providing for the issue of such series adopted by the Board of
Directors as hereinafter provided.
(ii) Authority is hereby granted to the Board of Directors, subject
to the provisions of the Memorandum of Association, these
Articles and applicable law, to create one or more series of
Preferred Shares and, with respect to each such series, to fix
by resolution or resolutions, without any further vote or action
by the members of the Company providing for the issue of such
series:
(a) the number of shares to constitute such series and the
distinctive designation thereof;
(b) the dividend rate on the shares of such series, the
dividend payment dates, the periods in respect of which
dividends are payable ("dividend periods"), whether such
dividends shall be cumulative and, if cumulative, the date
or dates from which dividends shall accumulate;
(c) whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or
classes or any other series of the same or any other class
or classes of shares of the Company and the conversion
price or prices or rate or rates, or the rate or rates at
which such exchange may be made, with such adjustments, if
any, as shall be stated and expressed or provided in such
resolution or resolutions;
(d) the preferences, if any, and the amounts thereof, which the
shares of such series shall be entitled to receive upon the
winding up of the Company;
(e) the voting power, if any, of the shares of such series;
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(f) transfer restrictions and rights of first refusal with
respect to the shares of such series; and
(g) such other terms, conditions, special rights and provisions
as may seem advisable to the Board of Directors.
Notwithstanding the fixing of the number of shares
constituting a particular series upon the issuance thereof,
the Board of Directors at any time thereafter may authorise
the issuance of additional shares of the same series
subject always to the Law and the Memorandum of
Association.
(iii) No dividend shall be declared and set apart for payment on any
series of Preferred Shares in respect of any dividend period
unless there shall likewise be or have been paid, or declared
and set apart for payment, on all Preferred Shares of each other
series entitled to cumulative dividends at the time outstanding
which rank senior or equally as to dividends with the series in
question, dividends ratably in accordance with the sums which
would be payable on the said shares through the end of the last
preceding dividend period if all dividends were declared and
paid in full.
(iv) If, upon the winding up of the Company, the assets of the
Company distributable among the holders of any one or more
series of Preferred Shares which (i) are entitled to a
preference over the holders of the Common Shares upon such
winding up, and (ii) rank equally in connection with any such
distribution, shall be insufficient to pay in full the
preferential amount to which the holders of such shares shall be
entitled, then such assets, or the proceeds thereof, shall be
distributed among the holders of each such series of the
Preferred Shares ratably in accordance with the sums which would
be payable on such distribution if all sums payable were
discharged in full.
7. The Company in general meeting may, from time to time, whether or not all
the shares for the time being authorised shall have been issued and whether
or not all the shares for the time being issued shall have been fully paid
up, by ordinary resolution, increase its share capital by the creation of
new shares, such new capital to be of such amount and to be divided into
shares of such respective amounts as the resolution shall prescribe.
MODIFICATION OF RIGHTS
8. If at any time the share capital of the Company is divided into different
classes of shares, all or any of the rights attached to any class of shares
for the time being issued (unless otherwise provided for in the terms of
issue of the shares of that class) may, subject to the provisions of the
Law, be varied or abrogated 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, in respect of
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the Series A Preferred Shares, with the consent of not less than three
fourths in nominal value of the issued Series A Preferred Shares, or with
the sanction of a special resolution passed at a separate meeting of the
holders of shares of that class. To every such separate meeting all the
provisions of these Articles relating to general meetings shall mutatis
mutandis apply, but so that the quorum for the purposes of any such
separate meeting and of any adjournment thereof shall be a person or
persons together holding (or representing by proxy) at the date of the
relevant meeting not less than one-third in nominal value of the issued
shares of that class, and that any holder of shares of the class present in
person or by proxy may demand a poll.
9. The special rights conferred upon the holders of shares of any class shall
not, unless otherwise expressly provided in the rights attaching to or the
terms of issue of such shares, be deemed to be varied by the creation or
issue of further shares ranking pari passu therewith.
REDEMPTION AND REPURCHASE OF SHARES
10. Subject to the Law and to any rights conferred on the holders of any class
of shares, the Company shall have the power (i) to purchase or otherwise
acquire all or any of its own shares (which expression as used in this
Article includes redeemable shares), provided either:-
(a) that the manner of purchase has first been authorised by the
Company in general meeting, or
(b) such purchases are made in open market transactions on a
recognized stock exchange on which the Company's shares are
listed; or
(c) such purchases may be effected from time to time, as authorised
by the Board of Directors, at a price per share no higher than
the average of the closing prices of said shares on a recognized
stock exchange on which said shares are listed, for the five
days on which said shares are traded immediately preceding any
such purchase (the "Average Market Price"); or
(d) such purchases may be effected from time to time, as authorised
by the Board of Directors at a price per share in excess of the
Average Market Price, provided that: the shares thus to be
purchased shall be in blocs consisting of a number equal to or
greater than five per cent of the number of shares then
outstanding and the price to be paid therefor shall have been
found to be fair in a written opinion of independent investment
bankers who have been selected for the purpose by a
disinterested committee of Directors; or
(e) an offer is made to all shareholders of the Company to purchase
a specified number of shares at a specified price, all tenders
of shares made
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in response to such offer to be accepted pro rata in the event
that more shares are to be tendered than the Company has offered
to purchase, except that all tenders of 99 shares or less may be
accepted in full at the discretion of the Directors,
(ii) to purchase or otherwise acquire warrants for the subscription or
purchase of its own shares and (iii) to give, directly or indirectly, by
means of a loan, a guarantee, a gift, an indemnity, the provision of
security or otherwise howsoever, financial assistance for the purpose of or
in connection with a purchase or other acquisition made or to be made by
any person of any shares or warrants in the Company. The Company may pay
for such shares or warrants in any manner authorised or not prohibited by
law, including out of capital. Should the Company purchase or otherwise
acquire its own shares or warrants, neither the Company nor the Board shall
be required to select the shares or warrants to be purchased or otherwise
acquired rateably or in any other manner as between the holders of shares
or warrants of the same class or as between them and the holders of shares
or warrants of any other class or in accordance with the rights as to
dividends or capital conferred by any class of shares.
11. Subject to the provisions of the Law and the Memorandum of Association of
the Company, and to any special rights conferred on the holders of any
shares or attaching to any class of shares, shares may be issued on the
terms that they may be, or at the option of the Company or the holders are,
liable to be redeemed on such terms and in such manner, including out of
capital, as the Board may deem fit.
12. The holder of the shares being purchased, surrendered or redeemed shall be
bound to deliver up to the Company at its registered office or such other
place as the Board shall specify the certificate(s) thereof for
cancellation and thereupon the Company shall pay to him the purchase or
redemption monies in respect thereof.
ISSUE OF SHARES AND WARRANTS
13. Subject to the provisions of the Law, of the Memorandum of Association of
the Company, and of these Articles relating to new shares, the unissued
shares in the Company (whether forming part of its original or any
increased capital) shall be at the disposal of the Board, which may offer,
allot, grant options over or otherwise dispose of them to such persons, at
such times and for such consideration, and upon such terms, as the Board
shall determine. No shares shall be issued to bearer and all shares shall
be issued fully paid.
14. The Board may issue warrants to subscribe for any class of shares or other
securities of the Company on such terms as it may from time to time
determine. No warrants shall be issued to bearer.
COMMISSION ON SHARES
15. The Company may, unless prohibited by law, at any time pay a commission to
any person for subscribing or agreeing to subscribe (whether absolutely or
conditionally) for any shares in the Company or procuring or agreeing to
procure subscriptions (whether absolute or conditional) for any shares in
the Company, but so that the conditions and requirements of
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the Law shall be observed and complied with.
NON-RECOGNITION OF TRUSTS
16. Except as otherwise expressly provided by these Articles or as required by
law or as ordered by a court of competent jurisdiction, no person shall be
recognised by the Company as holding any share upon any trust and the
Company shall not be bound by or be compelled in any way to recognise (even
when having notice thereof) any equitable, contingent, future or partial
interest in any shares or any interest in any fractional part of a share or
any other rights in respect of any share except an absolute right to the
entirety thereof in the registered holder.
REGISTER OF MEMBERS AND SHARE CERTIFICATES
17. The Board shall cause to be kept at such place within or outside the Cayman
Islands as they deem fit a principal register of the members and there
shall be entered therein the particulars of the members and the shares
issued to each of them and other particulars required under the Law.
18. If the Board considers it necessary or appropriate, the Company may
establish and maintain a branch register or registers of members at such
location or locations within or outside the Cayman Islands as the Board
thinks fit. The principal register and the branch register(s) shall
together be treated as the register for the purposes of these Articles.
19. The Board may, in its absolute discretion, at any time transfer any share
upon the principal register to any branch register or any share on any
branch register to the principal register or any other branch register.
20. The Company shall as soon as practicable and on a regular basis record in
the principal register all transfers of shares effected on any branch
register and shall at all times maintain the principal register in such
manner as to show at all times the members for the time being and the
shares respectively held by them, in all respects in accordance with the
Companies Law.
21. The register may be closed at such times and for such periods as the Board
may from time to time determine, either generally or in respect of any
class of shares, provided that the register shall not be closed for more
than 10 days in any year (or such longer period as the members may by
ordinary resolution determine provided that such period shall not be
extended beyond 20 days in any year).
22. Every person whose name is entered as a member in the register shall be
entitled without payment to receive, within 20 days, after allotment or
lodgment of transfer (or within such other period as the conditions of
issue shall provide), one certificate for all his shares of each class or,
upon payment of such reasonable fee as the Board shall prescribe, such
number of certificates for shares held as that person may request, provided
that in respect of a share or shares held jointly by several persons the
Company shall not be bound to issue a certificate or certificates to each
such person, and the issue and delivery of a certificate or certificates
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to one of several joint holders shall be sufficient delivery to all such
holders.
23. Every certificate for shares or debentures or representing any other form
of security of the Company shall be issued under the seal of the Company,
which shall only be affixed with the authority of the Board.
24. Every share certificate shall specify the number of shares in respect of
which it is issued and the amount paid thereon or the fact that they are
fully paid, as the case may be, and may otherwise be in such form as the
Board may from time to time prescribe.
25. The Company shall not be bound to register more than four persons as joint
holders of any share. If any share shall stand in the names of two or more
persons, the person first named in the register shall be deemed the sole
holder thereof as regards service of notices and, subject to the provisions
of these Articles, all or any other matters connected with the Company,
except the transfer of the share.
26. If a share certificate is defaced, lost or destroyed, it may be replaced on
payment of such reasonable fee, if any, as the Board may from time to time
prescribe and on such terms and conditions, if any, as to publication of
notices, evidence and indemnity, as the Board thinks fit and where it is
defaced or worn out, after delivery up of the old certificate to the
Company for cancellation.
TRANSFER OF SHARES
27. All transfers of shares may be effected by an instrument of transfer in the
usual common form or in such other form as the Board may approve. All
instruments of transfer must be left at the registered office of the
Company or at such other place as the Board may appoint and all such
instruments of transfer shall be retained by the Company.
28. The instrument of transfer shall be executed by or on behalf of the
transferor and by or on behalf of the transferee PROVIDED that the Board
may dispense with the execution of the instrument of transfer by the
transferee in any case which it thinks fit in its discretion to do so. The
instrument of transfer of any share shall be in writing and shall be
executed with a manual signature or facsimile signature (which may be
machine imprinted or otherwise) by or on behalf of the transferor and
transferee PROVIDED that in the case of execution by facsimile signature by
or on behalf of a transferor or transferee, the Board shall have previously
been provided with a list of specimen signatures of the authorised
signatories of such transferor or transferee and the Board shall be
reasonably satisfied that such facsimile signature corresponds to one of
those specimen signatures. The transferor shall be deemed to remain the
holder of a share until the name of the transferee is entered in the
register in respect thereof.
29. The Board may, in its absolute discretion, and without assigning any
reason, refuse to register a transfer of any share which is not fully paid
up or on which the Company has a lien. The Board may also decline to
register any transfer of any shares unless:
(a) the instrument of transfer is lodged with the Company accompanied by
the certificate
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for the shares to which it relates (which shall upon registration of
the transfer be cancelled) and such other evidence as the Board may
reasonably require to show the right of the transferor to make the
transfer;
(b) the instrument of transfer is in respect of only one class of shares;
(c) the instrument of transfer is properly stamped (in circumstances where
stamping is required);
(d) in the case of a transfer to joint holders, the number of joint
holders to which the share is to be transferred does not exceed four;
(e) the shares concerned are free of any lien in favour of the Company;
and
(f) a fee of such maximum amount as the Exchange (if any) may from time to
time determine to be payable (or such lesser sum as the Board may from
time to time require) is paid to the Company in respect thereof.
30. If the Board shall refuse to register a transfer of any share, it shall,
within two months after the date on which the transfer was lodged with the
Company, send to each of the transferor and the transferee notice of such
refusal.
31. No transfer shall be made to an infant or to a person in respect of whom an
order has been made by an competent court or official on the grounds that
he is or may be suffering from mental disorder or is otherwise incapable of
managing his affairs or under other legal disability.
32. Upon every transfer of shares the certificate held by the transferor shall
be given up to be cancelled, and shall forthwith be cancelled accordingly,
and a new certificate shall be issued without charge to the transferee in
respect of the shares transferred to him, and if any of the shares included
in the certificate so given up shall be retained by the transferor, a new
certificate in respect thereof shall be issued to him without charge. The
Company shall also retain the instrument(s) of transfer.
33. The registration of transfers may be suspended and the register closed at
such times for such periods as the Board may from time to time determine,
provided always that such registration shall not be suspended or the
register closed for more than 10 days in any year (or such longer period as
the members may by ordinary resolution determine provided that such period
shall not be extended beyond 20 days in any year).
TRANSMISSION OF SHARES
34. In the case of the death of a member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised
by the Company as having any title to his interest in the shares; but
nothing herein contained shall release the estate of a deceased holder
(whether sole or joint) from any liability in respect of any share solely
or jointly held
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by him.
35. Any person becoming entitled to a share in consequence of the death or
bankruptcy or winding-up of a member may, upon such evidence as to his
title being produced as may from time to time be required by the Board and
subject as hereinafter provided, either be registered himself as holder of
the share or elect to have some other person nominated by him registered as
the transferee thereof.
36. If the person so becoming entitled shall elect to be registered himself, he
shall deliver or send to the Company a notice in writing signed by him
stating that he so elects. If he shall elect to have his nominee registered
he shall testify his election by executing in favour of his nominee a
transfer of such share. All the limitations, restrictions and provisions of
these Articles relating to the right to transfer and the registration of
transfers of shares shall be applicable to any such notice or transfer as
aforesaid as if the death or bankruptcy or winding-up of the member had not
occurred and the notice or transfer were a transfer executed by such
member.
37. A person becoming entitled to a share by reason of the death or bankruptcy
or winding-up of the holder shall be entitled to the same dividends and
other advantages to which he would be entitled if he were the registered
holder of the share. However, the Board may, if it thinks fit, withhold the
payment of any dividend payable or other advantages in respect of such
share until such person shall become the registered holder of the share or
shall have effectually transferred such share, but, subject to the
requirements of Article 64 being met, such a person may vote at meetings.
ALTERATION OF CAPITAL
38. The Company may from time to time by ordinary resolution:
(a) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares. On any consolidation of fully
paid shares and division into shares of larger amount, the Board may
settle any difficulty which may arise as it thinks expedient and in
particular (but without prejudice to the generality of the foregoing)
may as between the holders of shares to be consolidated determine
which particular shares are to be consolidated into each consolidated
share, and if it shall happen that any person shall become entitled to
fractions of a consolidated share or shares, such fractions may be
sold by some person appointed by the Board for that purpose and the
person so appointed may transfer the shares so sold to the purchaser
thereof and the validity of such transfer shall not be questioned, and
so that the net proceeds of such sale (after deduction of the expenses
of such sale) may either be distributed among the persons who would
otherwise be entitled to a fraction or fractions of a consolidated
share or shares rateably in accordance with their rights and interests
or may be paid to the Company for the Company's benefit;
(b) cancel any shares which at the date of the passing of the resolution
have not been taken or agreed to be taken by any person, and diminish
the amount of its share capital by the amount of the shares so
cancelled subject to the provisions of the Law;
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and
(c) sub-divide its shares or any of them into shares of smaller amount
than is fixed by the Memorandum of Association of the Company, subject
nevertheless to the provisions of the Law, 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 such deferred rights or be subject to any such
restrictions as compared with the others as the Company has power to
attach to unissued or new shares.
39. The Company may by special resolution reduce its share capital, any capital
redemption reserve or any share premium account in any manner authorised
and subject to any conditions prescribed by Law.
BORROWING POWERS
40. The Board may from time to time at its discretion exercise all the powers
of the Company to raise or borrow or to secure the payment of any sum or
sums of money for the purposes of the Company and to mortgage or charge its
undertaking, property and assets (present and future) and uncalled capital
or any part thereof.
41. The Board may raise or secure the payment or repayment of such sum or sums
in such manner and upon such terms and conditions in all respects as it
thinks fit and, in particular, by the issue of debentures, debenture stock,
bonds or other securities of the Company, whether outright or as collateral
security for any debts, liability or obligations of the Company or of any
third party.
42. Debentures, debenture stock, bonds and other securities may be made
assignable free from any equities between the Company and the person to
whom the same may be issued.
43. Any debentures, debenture stock, bonds or other securities may be issued at
a discount, premium or otherwise and with any special privileges as to
redemption, surrender, drawings, allotment of shares, attending and voting
at general meetings of the Company, appointment of Directors and otherwise.
44. The Board shall cause a proper register to be kept, in accordance with the
provisions of the Law, of all mortgages and charges specifically affecting
the property of the Company and shall duly comply with the requirements of
the Law in regard to the registration of mortgages and charges therein
specified and otherwise.
45. If the Company issues debentures or debenture stock (whether as part of a
series or as individual instruments) not transferable by delivery, the
Board shall cause a proper register to be kept of the holders of such
debentures.
46. Where any uncalled capital of the Company is charged, all persons taking
any subsequent charge thereon shall take the same subject to such prior
charge, and shall not be entitled, by
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notice to the members or otherwise, to obtain priority over such prior
charge.
GENERAL MEETINGS
47. The Company shall in each year hold a general meeting as its annual general
meeting in addition to any other meeting in that year and shall specify the
meeting as such in the notices calling it; and not more than 15 months
shall elapse (or such longer period as the Exchange may authorise) between
the date of one annual general meeting of the Company and that of the next.
So as long as the first annual general meeting of the Company is held
within 15 months from the date of its incorporation, it need not be held in
the year of its incorporation. The annual general meeting shall be held at
such time and place as the Board shall appoint.
48. All general meetings other than annual general meetings shall be called
extraordinary general meetings.
49. The Board may, whenever it thinks fit, convene an extraordinary general
meeting.
50. An annual general meeting and any extraordinary general meeting shall be
called by not less than 10 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 shall specify the time, place, and
agenda of the meeting, particulars of the resolutions to be considered at
the meeting and in the case of special business (as defined in Article 55)
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 members other than such as, under the provisions
hereof or the terms of issue of the shares they hold, are not entitled to
receive such notice from the Company.
51. Notwithstanding that a meeting of the Company is called by shorter notice
than that referred to in Article 50, it shall be deemed to have been duly
called if it is so agreed:
(a) in the case of a meeting called as an annual general meeting, by all
the members of the Company entitled to attend and vote thereat or
their proxies; and
(b) in the case of any other meeting, by a majority in number of the
members having a right to attend and vote at the meeting, being a
majority together holding not less than 95 per cent in nominal value
of the shares giving that right.
52. There shall appear with reasonable prominence in every notice of general
meetings of the Company a statement that a member entitled to attend and
vote is entitled to appoint a proxy to attend and, on a poll, vote instead
of him and that a proxy need not be a member of the Company.
53. The accidental omission to give any such notice to, or the non-receipt of
any such notice by, any person entitled to receive notice shall not
invalidate any resolution passed or any proceeding at any such meeting.
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54. In cases where instruments of proxy are sent out with notices, the
accidental omission to send such instrument of proxy to, or the non-receipt
of such instrument of proxy by, any person entitled to receive notice shall
not invalidate any resolution passed or any proceeding at any such meeting.
PROCEEDINGS AT GENERAL MEETINGS
55. All business shall be deemed special that is transacted at an extraordinary
general meeting and also all business shall be deemed special that is
transacted at an annual general meeting with the exception of the
following, which shall be deemed ordinary business:
(a) the declaration and sanctioning of dividends;
(b) the consideration and adoption of the accounts and balance sheets and
the reports of the Directors and Auditors and other documents required
to be annexed to the balance sheet;
(c) the election of Directors in place of those retiring;
(d) the appointment of Auditors;
(e) the fixing of, or the determining of the method of fixing of, the
remuneration of the Directors and of the Auditors;
56. For all purposes the quorum for a general meeting shall be one or more
members present in person or by proxy holding not less than a majority of
the issued shares of the Company entitled to vote at the meeting in
question. No business shall be transacted at any general meeting unless the
requisite quorum shall be present at the commencement of the business.
57. If within one hour from the time appointed for the meeting a quorum is not
present, the meeting shall stand adjourned to the same day in the next week
and at such time and place as shall be decided by the Board, and if at such
adjourned meeting a quorum is not present within one hour from the time
appointed for holding the meeting, the member or members present in person
or by proxy shall be a quorum and may transact the business for which the
meeting was called.
58. The Chairman shall take the chair at every general meeting, or, if there be
no such Chairman or, if at any general meeting such Chairman shall not be
present within one hour after the time appointed for holding such meeting
or is unwilling to act, the Directors present shall choose another Director
as chairman of the meeting, and if no Director be present, or if all the
Directors present decline to take the chair, or if the Chairman chosen
shall retire from the chair, then the members present shall choose one of
their own number to be chairman of the meeting.
59. The Chairman may, with the consent of any general meeting at which a quorum
is present, and shall, if so directed by the meeting, adjourn any meeting
from time to time and from place to place as the meeting shall determine.
Whenever a meeting is adjourned for 14 days
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or more, at least seven clear days' notice, specifying the place, the day
and the hour of the adjourned meeting shall be given in the same manner as
in the case of an original meeting but it shall not be necessary to specify
in such notice the nature of the business to be transacted at the adjourned
meeting. Save as aforesaid, no member shall be entitled to any notice of an
adjournment or of the business to be transacted at any adjourned meeting.
No business shall be transacted at any adjourned meeting other than the
business which might have been transacted at the meeting from which the
adjournment took place.
60. At any general meeting a resolution put to the vote of the meeting shall be
decided on a poll.
61. A poll shall (subject as provided in Article 68) be taken in such manner
(including the use of ballot or voting papers or tickets) and at such time
and place, not being more than 10 days from the date of the meeting or
adjourned meeting at which the poll was demanded as the Chairman directs.
No notice need be given of a poll not taken immediately. The result of the
poll shall be deemed to be the resolution of the meeting at which the poll
was demanded.
62. In the case of an equality of votes, the Chairman of the meeting shall be
entitled to a second or casting vote.
VOTES OF MEMBERS
63. Subject to any special rights, privileges or restrictions as to voting for
the time being attached to any class or classes of shares, at any general
meeting on a poll every holder of Common Shares present in person (or, in
the case of a member being a corporation, by its duly authorised
representative) or by proxy shall have one vote for each Common Share
registered in his name in the register. On a poll a member entitled to more
than one vote is under no obligation to cast all his votes in the same way.
64. Any person entitled under Article 35 to be registered as a holder of Common
Shares may vote at any general meeting in respect thereof in the same
manner as if he were the registered holder of such shares, provided that at
least 48 hours before the time of the holding of the meeting or adjourned
meeting (as the case may be) at which he proposed to vote, he shall satisfy
the Board of his right to be registered as the holder of such shares or the
Board shall have previously admitted his right to vote at such meeting in
respect thereof.
65. Where there are joint registered holders of any share carrying a right to
vote, any one of such persons may vote at any meeting, either personally or
by proxy, in respect of such share as if he were solely entitled thereto;
but if more than one of such joint holders be present at any meeting
personally or by proxy, that one of the said persons so present being the
most or, as the case may be, the more senior shall alone be entitled to
vote in respect of the relevant joint holding and, for this purpose,
seniority shall be determined by reference to the order in which the names
of the joint holders stand on the register in respect of the relevant joint
holding. Several executors or administrators of a deceased member in whose
name any share stands shall for the purposes of this Article be deemed
joint holders thereof.
66. Save as expressly provided in these Articles or as otherwise determined by
the Board, no person other than a member duly registered shall be entitled
to be present or to vote (save as
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proxy for another member), or to be reckoned in a quorum, either personally
or by proxy at any general meeting.
67. In the case of any dispute as to the admission or rejection of any vote,
the Chairman of the meeting shall determine the same and such determination
shall be final and conclusive.
PROXIES
68. Any member of the Company entitled to attend and vote at a meeting of the
Company shall be entitled to appoint another person (who must be an
individual) as his proxy to attend and vote instead of him and a proxy so
appointed shall have the same right as the member to speak at the meeting.
Forms of proxy shall be sent by the Company to each member together with
the notice convening each annual and general meeting of the Company. On a
poll votes may be given either personally or by proxy. A proxy need not be
a member of the Company. A member may appoint any number of proxies to
attend in his stead at any one general meeting (or at any one class
meeting).
69. The instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney authorised in writing, or if the appointor is
a corporation, either under its seal or under the hand of an officer,
attorney or other person duly authorised to sign the same. The appointment
of a proxy may be made by electronic transmission.
70. 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 to
the Secretary at any time before the polls for the general meeting close or
may be delivered at the registered office of the Company (or at such other
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 24 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 24 hours before the time
appointed for the taking of the poll, and in default the instrument of
proxy shall not be treated as valid provided always that the Chairman of
the meeting may at his discretion direct that an instrument of proxy shall
be deemed to have been duly deposited upon receipt of electronic
transmission from the appointor that the instrument of proxy duly signed is
in the course of transmission to the Company. No instrument appointing a
proxy shall be valid after the expiration of 12 months from the date named
in it as the date of its execution. Delivery of any instrument appointing a
proxy shall not preclude a member from attending and voting in person at
the meeting or poll concerned and, in such event, the instrument appointing
a proxy shall be deemed to be revoked.
71. Every instrument of proxy, whether for a specified meeting or otherwise,
shall be in common form or such other form as the Board may from time to
time approve, provided that it shall enable a member, according to his
intention, to instruct his proxy to vote in favour of or against (or in
default of instructions or in the event of conflicting instructions, to
exercise his discretion in respect of) each resolution to be proposed at
the meeting to which the form of proxy relates.
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72. The instrument appointing a proxy to vote at a general meeting shall:
(a) 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; and
(b) unless the contrary is stated therein, be valid as well for any
adjournment of the meeting as for the meeting to which it relates,
provided that the meeting was originally held within 12 months from
such date.
73. A vote given in accordance with the terms of an instrument of proxy or
resolution of a member shall be valid notwithstanding the previous death or
insanity of the principal or revocation of the proxy or power of attorney
or other authority under which the proxy or resolution of a member was
executed or revocation of the relevant resolution or the transfer of the
share in respect of which the proxy was given, provided that no intimation
in writing of such death, insanity, revocation or transfer as aforesaid
shall have been received by the Company at its registered office, or at
such other place as is referred to in Article 59, at least two hours before
the commencement of the meeting or adjourned meeting at which the proxy is
used.
CORPORATE REPRESENTATIVES
74. Any corporation which is a member of the Company may, by resolution of its
directors or other governing body or by power of attorney, authorise such
person as it thinks fit to act as its representative at any meeting of the
Company or of members of any class of shares of the Company and the person
so authorised shall be entitled to exercise the same powers on behalf of
the corporation which he represents as that corporation could exercise if
it were an individual member of the Company and where a corporation is so
represented, it shall be treated as being present at any meeting in person.
BOARD OF DIRECTORS
75. So long as the shares of the Company are listed on the Exchange, the
Company shall maintain a minimum of three Independent Directors on its
Board. The Board shall consist of not less then one nor more than ten
persons (exclusive of alternate Directors) PROVIDED HOWEVER, that the
Company may from time to time by resolution passed by not less 75 per cent
of the issued shares increase or reduce the limits in the number of
Directors.
76. The first Directors of the Company shall be determined in writing by, or
appointed by a resolution of, the subscribers to the Memorandum of
Association.
77. The Directors shall be divided into three classes, designated Class I,
Class II and Class III. All classes shall be as nearly equal in number as
possible. The Directors as initially classified shall hold office for terms
as follows:
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(a) the Class I Directors shall hold office until the date of the annual
general meeting of shareholders in 2001 or until their successors
shall be elected and qualified;
(b) the Class II Directors shall hold office until the date of the annual
general meeting of shareholders in 2002 or until their successors
shall be elected and qualified; and
(c) the Class III Directors shall hold office until the date of the annual
general meeting or shareholders in 2003 or until their successors
shall be elected and qualified.
Upon expiration of the term of office of each class as set forth above, the
Directors in each class shall be elected for a term of three years to
succeed the Directors whose terms of office expire.
78. Each Director shall hold office until the expiration of his term and until
his successor shall have been elected and qualified.
79. The Board shall have power from time to time and at any time to appoint any
person as a Director either to fill a casual vacancy or as an addition to
the Board. Any Director so appointed shall hold office only until the next
following annual general meeting of the Company and shall then be eligible
for re-election at that meeting.
80. The Company may by special resolution at any time remove for cause any
Director (including an executive officer) before the expiration of his
period of office notwithstanding anything in these Articles or in any
agreement between the Company and such Director and may by ordinary
resolution elect another person in his stead.
81. Nothing in Article 80 should be taken as depriving a Director removed under
any provisions of that Article of compensation or damages payable to him in
respect of the termination of his appointment as Director or of any other
appointment or office as a result of the termination of his appointment as
Director or as derogatory from any power to remove a Director which may
exist apart from the provision of that Article.
82. The Company shall keep at its office a register of directors and officers
containing their names and addresses and occupations and any other
particulars required by the Law and shall send to the Registrar of
Companies of the Cayman Islands a copy of such register and shall from time
to time notify to the Registrar of Companies of the Cayman Islands any
change that takes place in relation to such Directors as required by the
Law.
83. A Director need not hold any qualification shares. No Director shall be
required to vacate office by reason only of his having attained any
particular age.
ALTERNATE DIRECTORS AND PROXIES FOR DIRECTORS
84. A Director may at any time by notice in writing delivered to the registered
office of the Company or at a meeting of the Board, appoint another
Director to be his alternate Director in his place during his absence and
may in like manner at any time determine such appointment. No more than two
alternate Directors may attend any meeting of the Board.
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85. The appointment of an alternate Director shall determine on the happening
of any event which, were he a Director, would cause him to vacate such
office or if his appointor ceases to be a Director.
86. An alternate Director shall be entitled to receive and waive (in lieu of
his appointor) notices of meetings of the Directors and shall be entitled
to attend and vote as a Director and be counted in the quorum at any such
meeting at which the Director appointing him is not personally present and
generally at such meeting to perform all the functions of his appointor as
a Director and for the purposes of the proceedings at such meeting the
provisions of these Articles shall apply as if he (instead of his
appointor) were a Director. If he shall be himself a Director or shall
attend any such meeting as an alternate for more than one Director his
voting rights shall be cumulative and he need not use all his votes or cast
all the votes he uses in the same way. To such extent as the Board may from
time to time determine in relation to any committee of the Board, the
foregoing provisions of this Article shall also apply mutatis mutandis to
any meeting of any such committee of which his appointor is a member. An
alternate Director shall not, save as aforesaid, have power to act as a
Director nor shall he be deemed to be a Director for the purposes of these
Articles.
87. An alternate Director shall be entitled to contract and be interested in
and benefit from contracts or arrangements or transactions and to be repaid
expenses and to be indemnified to the same extent mutatis mutandis as if he
were a Director, but he shall not be entitled to receive from the Company
in respect of his appointment as alternate Director any remuneration except
only such part (if any) of the remuneration otherwise payable to his
appointor as such appointor may by notice in writing to the Company from
time to time direct.
88. In addition to the foregoing provisions of this Article, a Director may be
represented at any meeting of the Board (or of any committee of the Board)
by a proxy appointed by him, in which event the presence or vote of the
proxy shall for all purposes be deemed to be that of the Director. A proxy
must be a Director and the provisions of Articles 68 to 73 shall apply
mutatis mutandis to the appointment of proxies by Directors save that an
instrument appointing a proxy shall not become invalid after the expiration
of twelve months from its date of execution but shall remain valid for such
period as the instrument shall provide or, if no such provision is made in
the instrument, until revoked in writing and save also that no more than
two proxies may attend any meeting.
REMUNERATION OF DIRECTORS
89. The Directors shall be entitled to receive by way of remuneration for their
services such sum as shall from time to time be determined by the Company
in general meeting or by the Board, as the case may be, such sum (unless
otherwise directed by the resolution by which it is determined) to be
divided amongst the Directors in such proportions and in such manner as
they may agree, or failing agreement, equally, except that in such event
any Director holding office for less than the whole of the relevant period
in respect of which the remuneration is paid shall only rank in such
division in proportion to the time during such period for which he has held
office. Such remuneration shall be in addition to any other remuneration to
which a Director who holds any salaried employment or office in the
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Company may be entitled by reason of such employment or office.
90. The Board may grant special remuneration to any Director, who shall perform
any special or extra services at the request of the Company. Such special
remuneration may be made payable to such Director in addition to or in
substitution for his ordinary remuneration as a Director, and may be made
payable by way of salary, commission or participation in profits or
otherwise as may be agreed.
91. The remuneration of an Executive Director or a Director appointed to any
other office in the management of the Company shall from time to time be
fixed by the Board and may be by way of salary, commission, or
participation in profits or otherwise or by all or any of those modes and
with such other benefits (including share option and/or pension and/or
gratuity and/or other benefits on retirement) and allowances as the Board
may from time to time decide. Such remuneration shall be in addition to
such remuneration as the recipient may be entitled to receive as a
Director.
92. The Directors shall be entitled to be paid all expenses, including travel
expenses, reasonably incurred by them in or in connection with the
performance of their duties as Directors including their expenses of
travelling to and from Board meetings, committee meetings or general
meetings or otherwise incurred whilst engaged on the business of the
Company or in the discharge of their duties as Directors.
VACATION OF OFFICE OF DIRECTOR
93. The office of a Director shall be vacated:
(a) if he resigns his office by notice in writing to the Company at its
registered office;
(b) if an order is made by any competent court or official on the grounds
that he is or may be suffering from mental disorder or is otherwise
incapable of managing his affairs and the Board resolves that his
office be vacated;
(c) if, without leave, he is absent from meetings of the Board (unless an
alternate Director or proxy appointed by him attends in his place) for
a continuous period of 12 months, and the Board resolves that his
office be vacated;
(d) if he becomes bankrupt or has a receiving order made against him or
suspends payment or compounds with his creditors generally;
(e) if he ceases to be or is prohibited from being a Director by law or by
virtue of any provisions in these Articles;
(f) if he shall be removed from office by notice in writing served upon
him signed by not less than three-fourths in number (or, if that is
not a round number, the nearest lower round number) of the Directors
(including himself) then in office; or
(g) if he shall be removed from office by a special resolution of the
members of the Company pursuant to Article 80.
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INTERESTED DIRECTORS
94. No Director or proposed Director shall be disqualified by his office from
contracting with the Company either as vendor, purchaser or otherwise nor
shall any such contract or any contract or arrangement entered into by or
on behalf of the Company with any person, company or partnership of or in
which any Director shall be a member or otherwise interested be capable on
that account of being avoided, nor shall any Director so contracting or
being any member or so interested be liable to account to the Company for
any profit so realised by any such contract or arrangement by reason only
of such Director holding that office or the fiduciary relationship thereby
established, provided that such Director shall, if his interest in such
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, either specifically or by way of a general notice stating that, by
reason of the facts specified in the notice, he is to be regarded as
interested in any contracts of a specified description which may
subsequently be made by the Company.
95. Any Director may continue to be or become a director, managing director,
joint managing director, deputy managing director, executive director,
manager or other officer or member of any other company in which the
Company may be interested and (unless otherwise agreed between the Company
and the Director) no such Director shall be liable to account to the
Company or the members for any remuneration or other benefits received by
him as a director, managing director, joint managing director, deputy
managing director, executive director, manager or other officer or member
of any such other company. The Directors may exercise the voting powers
conferred by the shares in any other company held or owned by the Company,
or exercisable by them as directors of such other company in such manner in
all respects as they think fit (including the exercise thereof in favour of
any resolution appointing themselves or any of them directors, managing
directors, joint managing directors, deputy managing directors, executive
directors, managers or other officers of such company) and any Director may
vote in favour of the exercise of such voting rights in manner aforesaid
notwithstanding that he may be, or is about to be, appointed a director,
managing director, joint managing director, deputy managing director,
executive director, manager or other officer of such a company, and that as
such he is or may become interested in the exercise of such voting rights
in the manner aforesaid.
96. 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 determine, and may be paid
such extra remuneration therefor (whether by way of salary, commission,
participation in profit or otherwise) as the Board may determine, and such
extra remuneration shall be in addition to any remuneration provided for by
or pursuant to any other Article.
97. No person shall be disqualified from the office of Director or alternate
Director or prevented by such office from contracting with the Company,
either as vendor, purchaser or otherwise, nor shall any such contract or
any contract or transaction entered into by or on behalf of the Company in
which any Director or alternate Director shall be in any way interested be
or be liable to be avoided, nor shall any Director or alternate Director so
contracting or being so
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interested be liable to account to the Company for any profit realised by
any such contract or transaction by reason of such Director holding office
or of the fiduciary relation thereby established. A Director (or his
alternate Director in his absence) shall be at liberty to vote in respect
of any contract or transaction in which he is so interested as aforesaid
provided however that the nature of the interest of any Director or
alternate Director in any such contract or transaction shall be disclosed
by him or the alternate Director appointed by him at or prior to its
consideration and any vote thereon.
98. A general notice or disclosure to the Directors or otherwise contained in
the minutes of a Meeting or a written resolution of the Directors or any
committee thereof that a Director or alternate Director is a shareholder of
any specified firm or company and is to be regarded as interested in any
transaction with such firm or company shall be sufficient disclosure under
Article 97 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
EXECUTIVE OFFICERS
99. The Board may from time to time appoint one or more Chairman of the Board,
President, Chief Executive Officer, Chief Financial Officer and such other
officers as it considers necessary in the management of the business of the
Company and as it may decide for such period and upon such terms as it
thinks fit and upon such terms as to remuneration as it may decide in
accordance with these Articles.
100. Every Director appointed to an office under Article 99 hereof shall,
without prejudice to any claim for damages that such Director may have
against the Company or the Company may have against such Director for any
breach of any contract of service between him and the Company, be liable to
be dismissed or removed therefrom by the Board. A Director appointed to an
office under Article 99 shall be subject to the same provisions as to
removal as the other Directors of the Company, and he shall, without
prejudice to any claim for damages that such Director may have against the
Company or the Company may have against such Director for any breach of any
contract of service between him and the Company, ipso facto and immediately
cease to hold such office if he shall cease to hold the office of Director
for any cause.
MANAGEMENT
101. (a) The management of the business of the Company shall be vested in the
Board which, in addition to the powers and authorities by these Articles
expressly conferred upon it, may exercise all such powers and do all such
acts and things as may be exercised or done or approved by the Company and
are not hereby or by the Law expressly directed or required to be exercised
or done by the Company in general meeting, but subject nevertheless to the
provisions of the Law and of these Articles and to any regulation from time
to time made by the Company in general meeting not being inconsistent with
such provisions or these Articles, PROVIDED THAT no regulation so made
shall invalidate any prior act of the Board which would have been valid if
such regulation had not been made.
(b) The Board of Directors may authorize any officer, officers, agent or
agents to enter
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into any contract or agreement of any nature whatsoever, including,
without limitation, any contract, deed, bond, mortgage, guarantee,
agreement, or any other document or instrument of any nature whatsoever,
and to execute and deliver any such contract, agreement, document or other
instrument of any nature whatsoever for and in the name of and on behalf
of the Company, and such authority may be general or confined to specific
instances.
102. (a) Subject to the provisions of the Law and except as otherwise
expressly provided in this Article, a special resolution of the
shareholders shall be required to approve:
(i) any merger or consolidation of the Company or any subsidiary
with (i) any Interested Shareholder (as hereinafter defined in
this Article) or (ii) any other company or other entity
(whether or not itself an Interested Shareholder) which is, or
after such merger or consolidation would be, an Affiliate of
an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder, or any Affiliate of any
Interested Shareholder, of any assets of the Company or any
subsidiary having an aggregate Fair Market Value (as
hereinafter defined in this Article) equaling or exceeding
twenty-five percent (25%) of the Fair Market Value of the
combined assets immediately prior to such transfer of the
Company and its subsidiaries; or
(iii) the issuance or transfer by the Company or any subsidiary (in
one transaction or a series of transactions) to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a
combination thereof), of any securities of the Company or any
subsidiary having an aggregate Fair Market Value equaling or
exceeding twenty-five percent (25%) of the Fair Market Value
of the combined assets immediately prior to such transfer of
the Company and its subsidiaries except pursuant to an
employee benefit plan of the Company or any subsidiary
thereof; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(v) any reclassification of securities of the Company (including
any reverse share split), recapitalization of the Company,
merger or consolidation of the Company with any of its
subsidiaries or other transaction (whether or not with or into
or otherwise involving an Interested Shareholder), which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Company or any
subsidiary which is directly or indirectly owned by any
Interested Shareholder or any Affiliate of any Interested
Shareholder (a "Disproportionate Transaction"); provided,
however, that no such transaction shall be deemed a
Disproportionate Transaction if the increase
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in the proportionate ownership of the Interested Shareholder
or Affiliate as a result of such transaction is no greater
than the increase experienced by the other stockholders
generally.
The term "Business Combination" as used in this Article shall mean any
transaction which is referred to in any one or more of paragraphs (i) through
(v) of Article 102 (a).
(b) The provisions of Article 102 (a) requiring a special resolution of
shareholders shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such vote as
is required by the Law or by these Articles of Association (other than
Article 102 (c) (ii)), whichever is greater, if the Business Combination
shall have been approved by a majority of the Disinterested Directors (as
hereinafter defined in this Article).
(c) For the purposes of this Article:
(i) "Affiliate" means with respect to any person, any other person
controlling or controlled by or under common control with such
specified person. For the purposes of this definition,
"control", when used with respect to any specified person,
means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership
of voting securities or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
(ii) "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Shareholder
and who was a member of the Board of Directors prior to the
time that the Interested Shareholder became an Interested
Shareholder, and any director who is thereafter chosen to fill
any vacancy on the Board of Directors or who is elected and
who, in either event, is unaffiliated with the Interested
Shareholder, and in connection with his or her initial
assumption of office is recommended for appointment or
election by a majority of Disinterested Directors then on the
Board of Directors.
(iii) "Interested Shareholder" shall mean any person (other than the
Company) and any holding company thereof who or which:
(1) is the beneficial owner directly or indirectly, of more
than twenty per cent (20%) of the voting power of the
outstanding shares of the Company; or
(2) is an Affiliate of the Company and at any time within the
two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of
twenty per cent (20%) or more of the voting power of the
then-outstanding shares; or
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(3) is an assignee of or has otherwise succeeded to any
shares which were at any time within the two-year period
immediately prior to the date in question beneficially
owned by any Interested Shareholder, if such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering.
A person shall not be deemed an Interested Shareholder if such person
would become an Interested Shareholder solely as a result of a
reduction of the number of shares of the Company outstanding,
including repurchases of outstanding shares of the Company by the
Company, which reduction increases the percentage of outstanding
shares of the Company of which such person is the beneficial owner,
until such person shall thereafter become the beneficial owner of any
additional shares.
(iv) "Fair Market Value" means: (a) in the case of shares, the
highest closing sale price of a share during the 30-day period
immediately preceding the date in question of such share
admitted to trading on an Exchange or any other system then in
use, the Fair Market Value shall be the highest closing sale
price reported by the Exchange or such other system during the
30-day period preceding the date in question, or, if no such
quotations are available, the Fair Market Value on the date in
question of such share as determined by the Board of Directors
in good faith, in each case with respect to any class of
share, appropriately adjusted for any dividend or distribution
in shares or any combination or reclassification of
outstanding shares of such share into a smaller number of
shares, and (b) in the case of property other than cash or
shares, the Fair Market Value of such property on the date in
question as determined by the Board of Directors in good
faith.
(d) A majority of the Disinterested Directors of the Company shall have
the power and duty to determine for the purposes of this Article, on
the basis of information known to them after reasonable inquiry, (a)
whether a person is an Interested Shareholder; (b) the number of
shares of which any person is the beneficial owner; (c) whether a
Person is an Affiliate of another; and (d) whether the assets which
are the subject of any Business Combination have, or any securities
to be issued or transferred by the Company or any Subsidiary in any
Business Combination have, an aggregate Fair Market Value equaling or
exceeding twenty-five percent (25%) of the Fair Market Value of the
combined assets immediately prior to such transfer of the Company and
its subsidiaries. A majority of the Disinterested Directors shall
have the further power to interpret all of the terms and provisions
of this Article.
PROCEEDINGS OF DIRECTORS
103. The Board may meet together for the despatch of business, adjourn and
otherwise regulate its meetings and proceedings as it thinks fit in any
part of the world and may determine the
<PAGE>
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quorum necessary for the transaction of business. Unless otherwise
determined two Directors shall be a quorum provided always that if there
at any time be only a sole Director the quorum shall be one. For the
purposes of this Article an alternate Director shall be counted in a
quorum in place of the Director who appointed him and an alternate
Director who is an alternate for more than one Director shall for quorum
purposes be counted separately in respect of himself (if he is a Director)
and in respect of each Director for whom he is an alternate (but so that
nothing in this provision shall be construed as authorising a meeting to
be constituted when only one person is physically present except if at any
time there is only a sole Director where the quorum shall be one). A
meeting of the Board or any committee of the Board may be held by means of
a telephone or tele-conferencing or any other telecommunications facility
provided that all participants are thereby able to communicate
contemporaneously by voice with all other participants and participation
in a meeting pursuant to this provision shall constitute presence in
person at such meeting.
104. The Chairman, President or a majority of the Directors may at any time
summon a meeting of the Board. 24 hours notice thereof shall be given to
each Director either in writing or by electronic transmission at the
address or telephone, facsimile or telex number from time to time notified
to the Company by such Director or in such other manner as the Board may
from time to time determine.
105. Questions arising at any meeting of the Board shall be decided by a
majority of votes, and in case of an equality of votes the Chairman shall
have a second or casting vote.
106. The Chairman of the Board shall act as chairman of the meetings of the
Board; but if no such Chairman is elected, or if at any meeting the
Chairman is not present within 15 minutes after the time appointed for
holding the same, the Directors present may choose one of their number to
be Chairman of the meeting.
107. A meeting of the Board for the time being at which a quorum is present
shall be competent to exercise all or any of the authorities, powers and
discretions by or under these Articles for the time being vested in or
exercisable by the Board generally.
108. The Board may delegate any of its powers to committees consisting of such
member or members of the Board (including alternate Directors in the
absence of their appointers) as the Board thinks fit, and it may from time
to time revoke such delegation or revoke the appointment of and discharge
any committees either wholly or in part, and either as to persons or
purposes, but every committee so formed shall in the exercise of the
powers so delegated conform to any regulations that may from time to time
be imposed upon it by the Board.
109. All acts done by any such committee in conformity with such regulations
and in fulfilment of the purposes for which it is appointed, but not
otherwise, shall have the like force and effect as if done by the Board,
and the Board shall have power, with the consent of the Company in general
meeting, to remunerate the members of any such committee, and charge such
remuneration to the current expenses of the Company.
110. The meetings and proceedings of any such committee consisting of two or
more members of
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the Board shall be governed by the provisions herein contained for
regulating the meetings and proceedings of the Board so far as the same
are applicable thereto and are not replaced by any regulations imposed by
the Board pursuant to Article 108.
111. The Board shall cause minutes to be made of:-
(a) all appointments of officers made by the Board;
(b) the names of the Directors present at each meeting of the Board and
any of committees of the Board;
(c) all declarations made or notices given by any Director of his
interest in any contract or proposed contract or of his holding of
any office or property whereby any conflict of duty or interest may
arise; and
(d) all resolutions and proceedings at all meetings of the Company and of
the Board and of such committees.
112. Any such minutes shall be conclusive evidence of any such proceedings if
they purport to be signed by the chairman of the meeting or by the
chairman of the succeeding meeting.
113. All acts bona fide done by any meeting of the Board or by a committee of
Directors or by any person acting as Director shall, notwithstanding that
it shall be afterwards discovered that there was some defect in the
appointment of such Director or persons acting as aforesaid or that they
or any of them were disqualified, be as valid as if every such person had
been duly appointed and was qualified to be a Director or member of such
committee as the case may be.
114. The continuing Directors may act notwithstanding any vacancy in their
body, but, if and so long as their number is reduced below the number
fixed by or pursuant to these Articles as the necessary quorum of
Directors, the continuing Director or Directors may act for the purpose of
increasing the number of Directors to that number or of summoning a
general meeting of the Company but for no other purpose.
115. A resolution in writing signed by each and every one of the Directors (or
their respective alternates) shall be as valid and effectual as if it had
been passed at a meeting of the Board duly convened and held and may
consist of several documents in like form each signed by one or more of
the Directors or alternate Directors.
SECRETARY
116. A Secretary may be appointed by the Board for such term, at such
remuneration and upon such conditions as it may think fit, and any
Secretary so appointed may be removed by the Board. Anything by the Law or
these Articles required or authorised to be done by or to the Secretary,
if the office is vacant or there is for any other reason no Secretary
capable of acting, may be done by or to any assistant or deputy Secretary
appointed by the Board, or if there is no assistant or deputy Secretary
capable of acting, by or to any officer of the
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Company authorised generally or specifically in that behalf by the Board.
117. A provision of the Law or of these Articles requiring or authorising 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.
GENERAL MANAGEMENT AND USE OF SEAL
118. The Board shall provide for the safe custody of the seal which shall only
be used by the authority of the Board or of a committee of the Board
authorised by the Board in that behalf, and every instrument to which such
seal shall be affixed shall be signed by a Director and shall be
countersigned by the Secretary or by a second Director or by some other
person appointed by the Board for the purpose. The securities seal which
shall be a facsimile of the common seal with the word "Securities"
engraved thereon shall be used exclusively for sealing securities issued
by the Company and for sealing documents creating or evidencing securities
so issued. The Board may either generally or in any particular case
resolve that the securities seal or any signatures or any of them may be
affixed to certificates for shares, warrants, debentures or any other form
of security by facsimile or other mechanical means specified in such
authority or that any such certificates sealed with the securities seal
need not be signed by any person. Every instrument to which the seal is
affixed as aforesaid shall, as regards all persons dealing in good faith
with the Company, be deemed to have been affixed to that instrument with
the authority of the Directors previously given.
119. The Company may have a duplicate seal as and where the Board shall
determine, and the Company may by writing under the seal appoint any
agents or agent, committees or committee abroad to be the agents of the
Company for the purpose of affixing and using such duplicate seal and they
may impose such restrictions on the use thereof as may be thought fit.
Wherever in these Articles reference is made to the seal, the reference
shall, when and so far as may be applicable, be deemed to include any such
duplicate seal as aforesaid.
120. 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, indorsed or otherwise executed, as the
case may be, in such manner as the Board shall from time to time by
resolution determine. The Company's banking accounts shall be kept with
such banker or bankers as the Board shall from time to time determine.
121. The Board may from time to time and at any time, by power of attorney
under the seal or by document executed as a deed, appoint any company,
firm or person or any fluctuating body of persons, 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 such
provisions for the protection and convenience of persons dealing with any
such attorney as the Board may think fit, and may also authorise any such
attorney to sub-delegate all or any of the powers, authorities and
discretions vested in him.
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122. The Company may, by writing under its seal or by document executed as a
deed, empower any person, either generally or in respect of any specified
matter, as its attorney to execute deeds and instruments on its behalf in
any part of the world and to enter into contracts and sign the same on its
behalf and every deed signed by such attorney on behalf of the Company
and, if required, under his seal shall bind the Company and have the same
effect as if it were under the seal of the Company.
PENSION FUNDS
123. The Board may establish and maintain or procure the establishment and
maintenance of any contributory or non-contributory pension or provident
or superannuation funds or (with the sanction of an ordinary resolution)
employee or executive share option schemes for the benefit of, or give or
procure the giving of donations, gratuities, pensions, allowances or
emoluments to any persons who are or were at any time in the employment or
service of the Company, or of any company which is a subsidiary of the
Company, or is allied or associated with the Company or with any such
subsidiary company, or who are or were at any time directors or officers
of the Company or of any such other company as aforesaid, and holding or
who have held any salaried employment or office in the Company or such
other company, and the wives, widows, families and dependents of any such
persons. The Board may also establish and subsidise or subscribe to any
institutions, associations, clubs or funds calculated to be for the
benefit of or to advance the interests and well-being of the Company or of
any such other company as aforesaid, and may make payments for or towards
the insurance of any such persons as aforesaid, and subscribe or guarantee
money for charitable or benevolent objects or for any exhibition or for
any public, general or useful object. The Board may do any of the matters
aforesaid, either alone or in conjunction with any such other company as
aforesaid. Any 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.
CAPITALISATION OF RESERVES
124. The Company in general meeting may upon the recommendation of the Board by
ordinary resolution resolve that it is desirable to capitalise all or any
part of the amount for the time being standing to the credit of any of the
Company's reserve accounts or funds or to the credit of the profit and
loss account or otherwise available for distribution (and not required for
the payment or provision of dividend on any shares with a preferential
right to dividend) and accordingly that such sums be set free for
distribution amongst the members who would have been entitled thereto if
distributed by way of dividend and in the same proportion on condition
that the same be not paid in cash but be applied either in or towards
paying up any amounts for the time being unpaid on any shares held by such
members respectively or paying up in full unissued shares, debentures or
other securities of the Company to be allotted and distributed credited as
fully paid up to and amongst such members in proportion aforesaid or
partly in one way and partly in the other, and the Board shall give effect
to such resolution, provided that a share premium account and a capital
redemption reserve and any reserve or fund representing unrealised profits
may, for the purposes of this Article, only be applied in paying up
unissued shares to be issued to members of the Company as fully paid
<PAGE>
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up shares or paying up calls or instalments due or payable on partly paid
securities of the Company subject always to the provisions of the Law.
125. Wherever such a resolution as referred to in Article 124 shall have been
passed the Board shall make all appropriations and applications of the
undivided profits resolved to be capitalised thereby, and all allotments
and issues of fully paid up shares, debentures or other securities, if
any, and generally shall do all acts and things required to give effect
thereto, with full power to the Board:
(a) to make such provision by the issue of fractional certificates or by
payment in cash or otherwise (including provisions whereby, in whole
or in part, fractional entitlements are aggregated and sold and the
net proceeds distributed to those entitled, or are disregarded or
rounded up or down or whereby the benefit of fractional entitlements
accrues to the Company rather than to the members concerned) as they
think fit in cases where shares, debentures or other securities
become distributable in fractions;
(b) to exclude the right of participation or entitlement of any member
with a registered address outside any territory where in the absence
of a registration statement or other special or onerous formalities
the circulation of an offer of such right or entitlement would or
might be unlawful or where the Board consider the costs, expense or
possible delays in ascertaining the existence or extent of the legal
and other requirements applicable to such offer or the acceptance of
such offer out of proportion to the benefits of the Company; and
(c) to authorise any person to enter on behalf of all members entitled
thereto into an agreement with the Company providing for the
allotment to them respectively, credited as fully paid up, of any
further shares, debentures or other securities to which they may be
entitled upon such capitalisation, or, as the case may require, for
the payment up by the Company on their behalf, by the application
thereto of their respective proportions of the profits resolved to be
capitalised, of the amounts or any part of the amounts remaining
unpaid on their existing shares, and any agreement made under such
authority shall be effective and binding on all such members.
126. The Board may, in relation to any capitalisation sanctioned under these
Articles in its absolute discretion specify that, and in such
circumstances and if directed so to do by a member or members entitled to
an allotment and distribution credited as fully paid up of unissued shares
or debentures in the Company pursuant to such capitalisation, shall allot
and distribute credited as fully paid up the unissued shares, debentures
or other securities to which that member is entitled to such person or
persons as that member may nominate by notice in writing to the Company,
such notice to be received not later than the day for which the general
meeting of the Company to sanction the capitalisation is convened.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
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127. Subject to the Law, the Directors may from time to time declare dividends
(including interim dividends) and distributions on shares of the Company
outstanding and authorise payment of the same out of the funds of the
Company lawfully available therefor.
128. The Directors may, before declaring any dividends or distributions, set
aside such sums as they think proper as a reserve or reserves which shall
at the discretion of the Directors, be applicable for any purpose of the
Company and pending such application may, at the like discretion, be
employed in the business of the Company.
129. No dividend or distribution shall be payable except out of the profits of
the Company, realised or unrealised, or out of the share premium account
or as otherwise permitted by the Law.
130. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends or distributions, if dividends or distributions are
to be declared on a class of shares they shall be declared and paid
according to the amounts paid or credited as paid on the shares of such
class outstanding on the record date for such dividend or distribution as
determined in accordance with these Articles but no amount paid or
credited as paid on a share in advance of calls shall be treated for the
purpose of this Article as paid on the share.
131. The Directors may deduct from any dividend or distribution payable to any
member all sums of money (if any) presently payable by him to the Company
on account of calls or otherwise.
132. The Directors may declare that any dividend or distribution be paid wholly
or partly by the distribution of specific assets and in particular of paid
up shares, debentures, or debenture stock of any other company or in any
one or more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient
and in particular may issue fractional certificates and fix the value for
distribution of such specific assets or any part thereof and may determine
that cash payments shall be made to any members upon the footing of the
value so fixed in order to adjust the rights of all members and may vest
any such specific assets in trustees as may seem expedient to the
Directors.
133. Any dividend, distribution, interest or other monies payable in cash in
respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to
such person and to such address as such holder or joint holders
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may in writing direct. Every such cheque or warrant shall be made payable
to the order of the person to whom it is sent. Any one of two or more joint
holders may give effectual receipts for any dividends, bonuses, or other
monies payable in respect of the share held by them as joint holders.
134. No dividend or distribution shall bear interest against the Company.
DOCUMENT DESTRUCTION
135. The Company shall be entitled to destroy all instruments of transfer,
probate, letters of administration, stop notices, powers of attorney,
certificates of marriage or death and other documents relating to or
affecting title to securities in or of the Company ("Registrable
Documents") which have been registered at any time after the expiration of
six years from the date of registration thereof and all dividend mandates
and notifications of change of address at any time after the expiration of
two years from the date of recording thereof and all share certificates
which have been cancelled at any time after the expiration of one year from
the date of the cancellation thereof and it shall conclusively be presumed
in favour of the Company that every entry in the register if purporting to
have been made on the basis of an instrument of transfer or Registrable
Document so destroyed was duly and properly made and every instrument of
transfer or Registrable Document so destroyed was a valid and effective
instrument or document duly and properly registered and every share
certificate so destroyed was a valid and effective certificate duly and
properly cancelled and every other document hereinbefore mentioned so
destroyed was a valid and effective document in accordance with the
recorded particulars thereof in the books or records of the Company,
provided always that:
(a) the provisions aforesaid shall apply only to the destruction of a
document in good faith and without express notice of the Company of
any claim (regardless of the parties thereto) to which the document
might be relevant;
(b) nothing herein contained shall be construed as imposing upon the
Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any other circumstances which
would not attach to the Company in the absence of this Article; and
(c) references herein to the destruction of any document include
references to the disposal thereof in any manner.
ACCOUNTS
136. The books of account shall be kept at such place or places as the Board
thinks fit and shall always be open to the inspection of the Directors.
137. The Board shall from time to time determine whether, to what extent, at
what times and places and under what conditions or regulations, the
accounts and books of the Company, or any of them, shall be open to the
inspection of the members (other than officers of the Company) and no
member shall have any right of inspecting any accounts or books or
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documents of the Company except as conferred by the Law or any other
relevant law or regulation or as authorised by the Board or by the Company
in general meeting.
138. The Board shall, commencing with the first annual general meeting cause to
be prepared and to be laid before the members of the Company at every
annual general meeting a profit and loss account for the preceding
financial year together with a balance sheet as at the last day of the
preceding financial year and a report for the period covered by the profit
and loss account and the state of the Company's affairs as at the end of
such period, an Auditors' report on such accounts prepared pursuant to
Article 137 and such other reports and accounts as may be required by law.
139. Printed copies of those documents to be laid before the members of the
Company at an annual general meeting shall not less than 10 days before the
date of the meeting be sent to every member of the Company and every holder
of debentures of the Company, provided that the Company shall not be
required to send printed copies of those documents to any person of whose
address the Company is not aware or to more than one of the joint holders
of any shares or debentures.
AUDIT
140. The Auditors shall audit the profit and loss account and balance sheet of
the Company in each year and shall prepare a report thereon to be annexed
thereto. Such report shall be laid before the Company at its annual general
meeting in each year and shall be open to inspection by any member. The
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 Board or any general meeting of the members, make a report on the
accounts of the Company in general meeting during their tenure of office.
141. The Company shall at any annual general meeting appoint an auditor or
auditors of the Company who shall hold office until the next annual general
meeting. The remuneration of the Auditors shall be fixed by the Company at
the annual general meeting at which they are appointed provided that in
respect of any particular year the Company in general meeting may delegate
the fixing of such remuneration to the Board. No person may be appointed as
the, or an, Auditor, unless he is independent of the Company. The Board may
before the first annual general meeting appoint an auditor or auditors of
the Company who shall hold office until the first annual general meeting
unless previously removed by an ordinary resolution of the members in
general meeting in which case the members at that meeting may appoint
Auditors. The Board may fill any casual vacancy in the office of Auditor
but while any such vacancy continues the surviving or continuing Auditor or
Auditors, if any, may act. The remuneration of any Auditor appointed by the
Board under this Article may be fixed by the Board.
142. Every statement of accounts audited by the Auditors and presented by the
Board at an annual general meeting shall after approval at such meeting be
conclusive except as regards any error discovered therein within three
months of the approval thereof. Whenever any such error is discovered
within that period, it shall forthwith be corrected, and the statement of
account amended in respect of the error shall be conclusive.
<PAGE>
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AUDIT COMMITTEE
143. For so long as the shares of the Company are quoted on the Exchange, it
shall establish and maintain an Audit Committee as a committee of the Board
PROVIDED ALWAYS THAT unless otherwise permitted by the rules of the
Exchange there shall be a minimum of three members of the Audit Committee
and all of the members of the Audit Committee shall be Independent
Directors. The Audit Committee shall comply with the rules or regulations
of the Exchange as promulgated from time to time so long as the shares of
the Company are listed on the Exchange. The responsibilities of the Audit
Committee shall include:
(a) to recommend annually to the Directors the appointment of the
independent auditors of the Company, discuss and review in advance the
scope and the fees of the annual audit and review the results thereof
with the independent auditors, review and approve non-audit services
of the independent auditors, review compliance with existing major
accounting and financial reporting policies of the Company, review the
adequacy of the financial organisation of the Company, and review
management's procedures and policies relating to the adequacy of the
Company's internal accounting controls and compliance with applicable
laws relating to accounting practices; and
(b) reviewing potential conflict of interest situations.
SERVICE OF NOTICES AND OTHER DOCUMENTS
144. Any notice or other document may be served on or delivered to any member
by the Company either personally or by sending it through the post in a
prepaid letter addressed to such member at his registered address as
appearing in the principal register or by delivering it to or leaving it at
such registered address addressed as aforesaid. 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.
145. Any such 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 (if sent to an address in the same country) and on the fifth day after
the day when it was put in the post (if sent from one country or territory
to an address in another country), 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 to have been served or delivered on the day it was so delivered or
left.
146. Any notice or other document delivered or sent by post to or left at the
registered address of any member in pursuance of these Articles shall,
notwithstanding that such member 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 member 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
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(whether jointly with or as claiming through or under him) in the share.
147. The signature to any notice to be given by the Company may be written or
printed by means of facsimile.
INFORMATION
149. No member shall be entitled to require discovery of or any information in
respect of any detail of the Company's trading or any matter which is or
may be in the nature of a trade secret or secret process which may relate
to the conduct of the business of the Company and which in the opinion of
the Board would not be in the interests of the members or the Company to
communicate to the public.
150. The Board shall be entitled to release or disclose any information in its
possession, custody or control regarding the Company or its affairs to any
of its members including, without limitation, information contained in the
register of members and transfer books of the Company.
WINDING UP
151. If the Company shall be wound up (whether the liquidation is voluntary,
under supervision or by the court) the liquidator may, with the authority
of a special resolution of the Company and any other sanction required by
the Law divide among the members in specie or kind the whole or any part of
the assets of the Company (whether the assets shall consist of property of
one kind or shall consist of properties of different kinds) and may for
such purpose set such value as he deems fair upon any property to be
divided and may determine how such division shall be carried out as between
the members or different classes of members. The liquidator may, with the
like authority or sanction vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the members as the liquidator,
with the like authority or sanction and subject to the Law, shall think
fit, and the liquidation of the Company may be closed and the Company
dissolved, but so that no member shall be compelled to accept any assets,
shares or other securities in respect of which there is a liability.
152. (a) The Company shall indemnify, to the full extent now or hereafter
permitted by law, any person (including his heirs, executors and
administrators) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, an action by or in the right of the
Company), by reason of his acting as, or having in the past acted as,
a Director, officer, employee or agent of, or his acting in any other
capacity for or on behalf of, the Company, (including his serving
for, on behalf of or at the request of the Company as a Director,
officer employee or agent of another company, partnership, joint
venture, trust or other enterprise, or in a fiduciary or other
capacity with respect to any employee benefit plan maintained by the
Company) against any expense (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by such person (or his heirs, executors and administrators) in
respect thereof. The
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Company shall advance the expenses of defending any such action, suit
or proceeding (including appeals) in accordance with and to the full
extent now or hereafter permitted by law.
(b) The Board of Directors may, notwithstanding any interest of the
directors in such action, authorize the Company to purchase and
maintain insurance on behalf of any person described in Article 152
(a), 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 would have the power to indemnify him against such
liability under the provisions of this Article 152.
(c) Directors of the Company shall have no personal liability to the
Company or its members for monetary damages for breach of fiduciary or
other duties as a director, except (i) for any breach of a director's
duty of loyalty to the Company or its members, (ii) for act or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, or (iii) for any transaction from which a
director derived an improper personal benefit.
(d) The provisions of this Article 152 shall be applicable to all actions,
claims, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before
or after its adoption. The provisions of this Article 152 shall be
deemed to be a contract between the Company and each director,
officer, employee or agent who serves in such capacity at any time
while this Article and the relevant provisions of the law, if any, are
in effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts
or any action, suit or proceeding then or theretofore existing, or any
action, suit or proceeding thereafter brought or threatened based in
whole or in part on any such state of facts. If any provision of this
Article 152 shall be found to be invalid or limited in application by
reason of any law or regulation, it shall not affect any other
application of such provision or the validity of the remaining
provisions hereof. The rights of indemnification and advancement of
expenses provided in this Article shall neither be exclusive of, nor
be deemed in limitation of, any rights to which any such officer,
director, employee or agent may otherwise be entitled or permitted by
contract, vote of members or directors or otherwise, or as a matter of
law, both as to actions in his official capacity and actions in any
other capacity while holding such office, it being the policy of the
Company that indemnification of the specified individuals shall be
made to the fullest extent permitted by law.
FINANCIAL YEAR
153. The financial year of the Company shall be as prescribed by the Board from
time to time.
REGISTERED OFFICE
154. The registered office of the Company shall be at such place in the Cayman
Islands as the Board shall from time to time appoint.
<PAGE>
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AMENDMENT OF MEMORANDUM AND ARTICLES
155. Subject to the Law, the Company may at any time and from time to time by
special resolution alter or amend its Memorandum of Association and
Articles of Association in whole or in part.
156. For the purpose of determining Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or Members entitled to
receive payment of any dividend, or in order to make a determination of
Members for any other proper purposes, the Directors of the Company may
provide that the register of Members shall be closed for transfers for a
stated period but not to exceed in any case forty days. If the register of
Members shall be so closed for the purpose of determining Members entitled
to notice of or to vote at a meeting of Members such register shall be so
closed for at least ten days immediately preceding such meeting and the
record date for such determination shall be the date of the closure of the
register of Members.
157. In lieu of or apart from closing the register of Members, the Directors may
fix in advance a date as the record date for any such determination of
Members entitled to notice of or to vote at a meeting of the Members and
for the purpose of determining the Members entitled to receive payment of
any dividend the Directors may, at or within 90 days prior to the date of
declaration of such dividend fix a subsequent date as the record date for
such determination.
158. If the register of Members is not so closed and no record date is fixed for
the determination of Members entitled to notice of or to vote at a meeting
of Members or Members entitled to receive payment of a dividend, the date
on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of members has
been made as provided in this section, such determination shall apply to
any adjournment thereof.
<PAGE>
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DATED 24th day of July, 2000.
/s/ Rebecca Steller
____________________________________
Rebecca Steller
PO Box 309, Grand Cayman
/s/ Graham Lockington
____________________________________
Graham Lockington
PO Box 309, Grand Cayman
/s/ Diann Green
____________________________________
Witness to the above signatures
I, Renda S. Cornwall, Asst. Registrar of Companies in and for the Cayman Islands
HEREBY CERTIFY that this is a true and correct copy of the Articles of
Association of this Company duly incorporated on the 24th day of July, 2000
/s/ Renda S. Cornwall
_____________________
Asst. Registrar of Companies
