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EXHIBIT 3.2
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
AMENDED & RESTATED
ARTICLES OF ASSOCIATION
OF
UTi WORLDWIDE INC.
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following
table shall bear the meanings set opposite them respectively in the
second column thereof.
Words Meaning
"A" director Any person being a director and designated as such
by a resolution of members or resolution of
directors pursuant to the provisions of Regulations
79 and 80.
"B" director Any person being a director and designated as such
by a resolution of members or resolution of
directors pursuant to the provisions of Regulations
79 and 80.
capital The sum of the aggregate par value of all
outstanding shares with par value of the Company
and shares with par value held by the Company as
treasury shares plus
(a) the aggregate of the amounts designated as
capital of all outstanding shares without
par value of the Company and shares without
par value held by the Company as treasury
shares, and
(b) the amounts as are from time to time
transferred from surplus to capital by a
resolution of directors.
"C" director Any person being a director and designated as such
by a resolution of members or resolution of
directors pursuant to the provisions of Regulations
79 and 80.
member A person who holds shares in the Company.
person An individual, a corporation, a trust, the estate
of a deceased individual, a partnership or an
unincorporated association of persons.
resolution of (a) a resolution approved at a duly convened and
constituted
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directors meeting of directors of the Company or of a
committee of directors of the Company by the
affirmative vote of a simple majority of the
directors present at the meeting who voted
and did not abstain; or
(b) a resolution consented to in writing by
three-quarters of the directors or of
three-quarters of the members of the
committee, as the case may be.
resolution of With respect to calling a meeting of directors, a
directors resolution consented to in writing by any one
director and notified to all other directors.
resolution of A resolution approved at a duly convened and
members constituted meeting of the members of the Company
by the affirmative vote of
(a) a simple majority of the votes of the shares
entitled to vote thereon which were present
at the meeting and were voted and not
abstained, or
(b) a simple majority of the votes of each class
or series of shares which were present at
the meeting and entitled to vote thereon as
a class or series and were voted and not
abstained and of a simple majority of the
votes of the remaining shares entitled to
vote thereon which were present at the
meeting and were voted and not abstain.
securities Shares and debt obligations of every kind, and
options, warrants and rights to acquire shares, or
debt obligations.
surplus The excess, if any, at the time of the
determination of the total assets of the Company
over the aggregate of its total liabilities, as
shown in its books of account, plus the Company's
capital.
the Act The International Business Companies Act (Cap
291) including any modification, extension,
re-enactment or renewal thereof and any regulations
made thereunder.
the Memorandum The Memorandum of Association of the Company as
originally framed or as from time to time amended.
the Seal Any Seal which has been duly adopted as the Seal of
the Company.
these Articles These Articles of Association as originally framed
or as from time to time amended.
treasury Shares in the Company that were previously issued
shares but were repurchased, redeemed or otherwise
acquired by the Company and not cancelled.
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2. "Written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented or
reproduced by any mode of reproducing words in a visible form, including
telex, facsimile, telegram, cable or other form of writing produced by
electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear
the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and
not the number of members who actually voted and a reference to shares
being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be issued
according to the provisions of the Memorandum.
REGISTERED SHARES
7. Every member holding registered shares in the Company shall be entitled
to a certificate signed by a director or officer of the Company or under
the Seal of the Company. The certificate shall specify the share or
shares held by the member and shall
(a) be signed by two directors or two officers of the Company, or by
one director and one officer; or
(b) be under the Seal of the company, with or without the signature
of any director or officer of the company
and the signature of the director(s) or officer(s) and/or the Seal may
be facsimiles.
8. If several persons are registered as joint holders of any shares, any
one of such persons may give an effectual receipt for any dividend
payable in respect of such shares.
SHARES, AUTHORIZED CAPITAL, CAPITAL AND SURPLUS
9. Subject to the provisions of these Articles and any resolution of
members, the unissued shares of the Company shall be at the disposal of
the directors who may, without limiting or affecting any rights
previously conferred on the holders of any existing shares or class or
series of shares, offer, allot, grant options over or otherwise dispose
of shares to such persons, at such times and upon such terms and
conditions as the Company may by resolution of directors determine.
10. No share in the Company may be issued until the consideration in respect
thereof is fully paid, and when issued the share is for all purposes
fully paid and non-assessable save that
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a share issued for a promissory note or other written obligation for
payment of a debt may be issued subject to forfeiture in the manner
prescribed in these Articles.
11. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or
other binding obligation to contribute money or property or any
combination of the foregoing as shall be determined by a resolution of
directors.
12. Shares in the Company may be issued for such amount of consideration as
the directors may from time to time by resolution of directors
determine, except that in the case of shares with par value, the amount
shall not be less than the par value, and in the absence of fraud the
decision of the directors as to the value of the consideration received
by the Company in respect of the issue is conclusive unless a question
of law is involved. The consideration in respect of the shares
constitutes capital to the extent of the par value and the excess
constitutes surplus.
13. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company,
shall be treated for all purposes as having been issued for money equal
to the consideration received or deemed to have been received by the
Company in respect of the other share, debt obligation or security.
14. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the
Company may by resolution of directors determine.
15. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
16. Upon the issue by the Company of a share without par value, if an amount
is stated in the Memorandum to be authorized capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except
that the directors must designate as capital an amount of the
consideration that is at least equal to the amount that the share is
entitled to as a preference, if any, in the assets of the Company upon
liquidation of the Company.
17. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares of
equal value.
18. Subject to provisions to the contrary in
(a) the Memorandum or these Articles;
(b) the designations, powers, preferences, rights, qualifications,
limitations and restrictions with which the shares were issued;
or
(c) the subscription agreement for the issue of the shares,
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the Company may not purchase, redeem or otherwise acquire its own shares
without the consent of members whose shares are to be purchased,
redeemed or otherwise acquired.
19. No purchase, redemption or other acquisition of shares shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business
and the realizable value of the assets of the Company will not be less
than the sum of its total liabilities, other than deferred taxes, as
shown in the books of account, and its capital and, in the absence of
fraud, the decision of the directors as to the realizable value of the
assets of the Company is conclusive, unless a question of law is
involved.
20. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired
(a) pursuant to a right of a member to have his shares redeemed or
to have his shares exchanged for money or other property of the
Company;
(b) by virtue of a transfer of capital pursuant to Regulation 47;
(c) by virtue of the provisions of Section 83 of the Act; or
(d) pursuant to an order of the Court.
21. Shares that the Company purchases, redeems or otherwise acquires
pursuant to the preceding Regulation may be cancelled or held as
treasury shares except to the extent that such shares are in excess of
80 percent of the issued shares of the Company in which case they shall
be cancelled but they shall be available for reissue.
22. Where shares in the Company are held by the Company as treasury shares
or are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the
election of directors of the other company, such shares of the Company
are not entitled to vote or to have dividends paid thereon and shall not
be treated as outstanding for any purpose except for purposes of
determining the capital of the Company.
23. The Company may by a resolution of directors include in the computation
of surplus for any purpose the unrealised appreciation of the assets of
the Company, and, in the absence of fraud, the decision of the directors
as to the value of the assets is conclusive, unless a question of law is
involved.
MORTGAGES AND CHARGES OF REGISTERED SHARES
24. Members may mortgage or charge their registered shares in the Company
and upon satisfactory evidence thereof the Company shall give effect to
the terms of any valid mortgage or charge except insofar as it may
conflict with any requirements herein contained for consent to the
transfer of shares.
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25. In the case of the mortgage or charge of registered shares there may be
entered in the share register of the Company at the request of the
registered holder of such shares
(a) a statement that the shares are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the aforesaid particulars are entered in the
share register.
26. Where particulars of a mortgage or charge are registered, such
particulars shall be cancelled
(a) with the consent of the named mortgagee or chargee or anyone
authorized to act on his behalf; or
(b) upon evidence satisfactory to the directors of the discharge of
the liability secured by the mortgage or charge and the issue of
such indemnities as the directors shall consider necessary or
desirable.
27. Whilst particulars of a mortgage or charge are registered, no transfer
of any share comprised therein shall be effected without the written
consent of the named mortgagee or chargee or anyone authorized to act on
his behalf.
FORFEITURE
28. When shares issued for a promissory note or other written obligation for
payment of a debt have been issued subject to forfeiture, the following
provisions shall apply.
29. Written notice specifying a date for payment to be made and the shares
in respect of which payment is to be made shall be served on the member
who defaults in making payment pursuant to a promissory note or other
written obligations to pay a debt.
30. The written notice specifying a date for payment shall
(a) name a further date not earlier than the expiration of 14 days
from the date of service of the notice on or before which
payment required by the notice is to be made; and
(b) contain a statement that in the event of non-payment at or
before the time named in the notice the shares, or any of them,
in respect of which payment is not made will be liable to be
forfeited.
31. Where a written notice has been issued and the requirements have not
been complied with within the prescribed time, the directors may at any
time before tender of payment forfeit and cancel the shares to which the
notice relates.
32. The Company is under no obligation to refund any moneys to the member
whose shares have been forfeited and cancelled pursuant to these
provisions. Upon forfeiture and cancellation of the shares the member is
discharged from any further obligation to the Company with respect to
the shares forfeited and cancelled.
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LIEN
33. The Company shall have a first and paramount lien on every share issued
for a promissory note or for any other binding obligation to contribute
money or property or any combination thereof to the Company, and the
Company shall also have a first and paramount lien on every share
standing registered in the name of a member, whether singly or jointly
with any other person or persons, for all the debts and liabilities of
such member or his estate to the Company, whether the same shall have
been incurred before or after notice to the Company of any interest of
any person other than such member, and whether the time for the payment
or discharge of the same shall have actually arrived or not, and
notwithstanding that the same are joint debts or liabilities of such
member or his estate and any other person, whether a member of the
Company or not. The Company's lien on a share shall extend to all
dividends payable thereon. The directors may at any time either
generally, or in any particular case, waive any lien that has arisen or
declare any share to be wholly or in part exempt from the provisions of
this Regulation.
34. In the absence of express provisions regarding sale in the promissory
note or other binding obligation to contribute money or property, the
Company may sell, in such manner as the directors may by resolution of
directors determine, any share on which the Company has a lien, but no
sale shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of twenty-one days after a
notice in writing, stating and demanding payment of the sum presently
payable and giving notice of the intention to sell in default of such
payment, has been served on the holder for the time being of the share.
35. The net proceeds of the sale by the Company of any shares on which it
has a lien shall be applied in or towards payment of discharge of the
promissory note or other binding obligation to contribute money or
property or any combination thereof in respect of which the lien exists
so far as the same is presently payable and any residue shall (subject
to a like lien for debts or liabilities not presently payable as existed
upon the share prior to the sale) be paid to the holder of the share
immediately before such sale. For giving effect to any such sale the
directors may authorize some person to transfer the share sold to the
purchaser thereof. The purchaser shall be registered as the holder of
the share and he shall not be bound to see to the application of the
purchase money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
TRANSFER OF SHARES
36. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed by
the transferor and containing the name and address of the transferee,
but in the absence of such written instrument of transfer the directors
may accept such evidence of a transfer of shares as they consider
appropriate.
37. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
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TRANSMISSION OF SHARES
38. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognized by the Company as having any title to his share but
they shall not be entitled to exercise any rights as a member of the
Company until they have proceeded as set forth in the next following
three Regulations.
39. The production to the Company of any document which is evidence of
probate of the will, or letters of administration of the estate, or
confirmation as executor, of a deceased member or of the appointment of
a guardian of an incompetent member or the trustee of a bankrupt member
shall be accepted by the Company even if the deceased, incompetent or
bankrupt member is domiciled outside the British Virgin Islands if the
document evidencing the grant of probate or letters of administration,
confirmation as executor, appointment as guardian or trustee in
bankruptcy is issued by a foreign court which had competent jurisdiction
in the matter. For the purpose of establishing whether or not a foreign
court had competent jurisdiction in such a matter the directors may
obtain appropriate legal advice. The directors may also require an
indemnity to be given by the executor, administrator, guardian or
trustee in bankruptcy.
40. Any person becoming entitled by operation of law or otherwise to a share
or shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced
as may reasonably be required by the directors. An application by any
such person to be registered as a member shall for all purposes be
deemed to be a transfer of shares of the deceased, incompetent or
bankrupt member and the directors shall treat it as such.
41. Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person to be
named by him be registered as the transferee of such share or shares and
such request shall likewise be treated as if it were a transfer.
42. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and
the circumstances of the case.
REDUCTION OR INCREASE IN AUTHORIZED CAPITAL OR CAPITAL
43. The Company may by a resolution of directors or a resolution of members
amend the Memorandum to increase or reduce its authorized capital and in
connection therewith the Company may in respect of any unissued shares
increase or reduce the number of such shares, increase or reduce the par
value of any such shares or effect any combination of the foregoing.
44. Subject to the requirements of the Memorandum, the Company may by either
a resolution of members or a resolution of directors amend the
Memorandum to
a) increase or reduce its authorized capital and in connection
therewith the Company may in respect of any unissued shares
increase or reduce the number of such shares, increase or reduce
the par value of any such shares or effect any combination of
the foregoing;
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b) increase the number of its shares having no par value;
c) increase its capital constituted by shares of no par value by
transferring reserves or profits to the capital, with or without
a distribution of shares;
d) combine and divide all or any part of its share capital into
shares of larger amount than its existing shares or combine and
reduce the number of the issued no par value shares;
e) increase the number of its issued no par value shares without an
increase of its capital;
f) subdivide its shares, or any of them, into shares of smaller
amount than is fixed by the Memorandum;
g) convert any shares having a par value into shares of no par
value;
h) convert any shares of no par value into shares having a par
value; or
i) convert any of its shares, whether issued or not, into shares of
another class.
45. The Company may by a resolution of directors or a resolution of members
amend the Memorandum to
(a) divide the shares, including issued shares, of a class or series
into a larger number of shares of the same class or series; or
(b) combine the shares, including issued shares, of a class or
series into a smaller number of shares of the same class or
series,
provided, however, that where shares are divided or combined under (a)
or (b) of this Regulation, the aggregate par value of the new shares
must be equal to the aggregate par value of the original shares.
46. The capital of the Company may by a resolution of directors be increased
by transferring an amount of the surplus of the Company to capital.
47. Subject to the provisions of the two next succeeding Regulations, the
capital of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the Company to surplus.
48. No reduction of capital shall be effected that reduces the capital of
the Company to an amount that immediately after the reduction is less
than the aggregate par value of all outstanding shares with par value
and all shares with par value held by the Company as treasury shares and
the aggregate of the amounts designated as capital of all outstanding
shares without par value and all shares without par value held by the
Company as treasury shares that are entitled to a preference, if any, in
the assets of the Company upon liquidation of the Company.
49. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its
business and that the realizable assets of the Company will
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not be less than its total liabilities, other than deferred taxes, as
shown in the books of the Company and its remaining capital, and, in the
absence of fraud, the decision of the directors as to the realizable
value of the assets of the Company is conclusive, unless a question of
law is involved.
MEETINGS AND CONSENTS OF MEMBERS
50. Any action required or permitted to be taken by the members must be
effected at a duly called annual or special meeting (as described in
Regulations 52 and 53) of the members entitled to vote on such action
and may not be effected by written resolution.
51. Meetings of members shall be held at such places as may be fixed from
time to time by the directors.
52. An annual meeting of members for election of directors and for such
other business as may come before the meeting shall be held each year at
such date and time as may be determined by the directors.
53. Special meetings of members (being all meetings of members which are not
annual meetings) may be called only by the directors pursuant to a
resolution of directors to that effect or by the chief executive
officer, save that upon the written request of members holding more than
50 percent of the votes of the outstanding voting shares in the Company,
the directors and the chief executive officer shall convene a special
meeting of members.
54. Written notice of all meetings of members, stating the time, place and
purposes thereof, shall be given not fewer than ten days before the date
of the proposed meeting to those persons whose names appear as members
in the share register of the Company on the date of the notice and are
entitled to vote at the meeting.
55. The directors may fix the date notice is given of a meeting of members
as the record date for determining those shares that are entitled to
vote at the meeting.
56. A meeting of members may be called on short notice:
(a) if members holding not less than 90 percent of the total number
of shares entitled to vote on all matters to be considered at
the meeting, or 90 percent of the votes of each class or series
of shares where members are entitled to vote thereon as a class
or series together with not less than a 90 percent majority of
the remaining votes, have agreed to short notice of the meeting,
or
(b) if all members holding shares entitled to vote on all or any
matters to be considered at the meeting have waived notice of
the meeting and for this purpose presence at the meeting shall
be deemed to constitute waiver.
57. The inadvertent failure of the directors to give notice of a meeting to
a member, or the fact that a member has not received notice, does not
invalidate the meeting.
58. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
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59. The instrument appointing a proxy shall be produced at the place
appointed for the meeting before the time for holding the meeting at
which the person named in such instrument proposes to vote.
60. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy:
(Name of Company)
I/We __________________________________________________________________
being a member of the above Company with ________________________shares
HEREBY APPOINT ________________________________________________________
of ____________________________________________________________________
or failing him ________________________________________________________
of ______________________________________________________________ to be
my/our proxy to vote for me/us at the meeting of members to be held on
the ______________ day of ___________________________________and at any
adjournment thereof.
[Any restrictions on voting to be inserted here]
Signed this day of
---------------------- ---------------------------------
----------------------------------
Member
61. The following shall apply in respect of joint ownership of shares:
(a) if two or more persons hold shares jointly each of them may be
present in person or by proxy at a meeting of members and may
speak as a member;
(b) if only one of the joint owners is present in person or by proxy
he may vote on behalf of all joint owners, and
(c) if two or more of the joint owners are present in person or by
proxy they must vote as one.
62. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
63. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50
percent of the votes of the shares or class or series of shares entitled
to vote on resolutions of members to be considered at the meeting. If a
quorum be present, notwithstanding the fact that such quorum may be
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represented by only one person then such person may resolve any matter
and a certificate signed by such person accompanied where such person be
a proxy by a copy of the proxy form shall constitute a valid resolution
of members.
64. If within two hours from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of members,
shall be dissolved; in any other case it shall stand adjourned to the
next business day at the same time and place or to such other time and
place as the directors may determine, and if at the adjourned meeting
there are present within one hour from the time appointed for the
meeting in person or by proxy not less than one third of the votes of
the shares or each class or series of shares entitled to vote on the
resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
65. At any meeting of members, only such business shall be conducted as
shall have been brought before such meeting:
(a) by or at the direction of the Chairman of the Board of
Directors; or
(b) by any member who is a holder of record at the time of the
giving of the notice provided for in Regulation 54 who is
entitled to vote at the meeting and who complies with the
procedures set out in Regulation 66.
66. (a) For business to be properly brought to the annual meeting of
members by a member, the member must have given written notice
thereof, either by personal delivery or by prepaid registered
post to the Secretary of the Company (the "Secretary") at the
principal executive offices of the Company not less than 30 days
nor more than 60 days prior to the meeting as originally
scheduled, provided, however, that, if less than 40 days' notice
or prior public disclosure of the date of the meeting is given
or made to members, notice by the member to be timely must be so
received not later than the close of business on the fifth day
following the day on which such notice of the date of the
general meeting was posted or such public disclosure was made.
For the purposes of this Regulation 66, any adjournment(s) or
postponement(s) of the original meeting whereby the meeting will
reconvene within 30 days from original date shall be deemed, for
purposes of notice, to be a continuation of the original meeting
and no business may be brought before any reconvened meeting
unless such timely notice of such business was given to the
Secretary for the meeting as originally scheduled. A member's
notice to the Secretary shall set out as to each matter that the
member wishes to be brought before the meeting of members:
(i) a brief description of the business desired to be
brought before the meeting;
(ii) the name and address of record of the member proposing
such business;
(iii) the class and number of shares of the Company which are
beneficially owned by such member;
(iv) any material interest of such member in such business;
and
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(v) if the member intends to solicit proxies in support of
such member's proposal, a representation to that effect
(b) Notwithstanding the aforegoing, nothing in this Regulation 66
shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of, the
directors. The chairman of a meeting of members shall, if the
facts so warrant, determine and declare to the meeting that
business was not properly brought before the meeting in
accordance with the provisions of this Regulation 66 and, if he
should so determine, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not
be transacted. However, the notice requirements set out in this
Regulation 66 shall be deemed satisfied by a member if the
member has notified the Company of his intention to present a
proposal at a meeting of members and such member's proposal has
been included in a proxy statement that has been distributed by,
at the direction of, or on behalf of, the directors to solicit
proxies for such meeting; provided that, if such member does not
appear or send a qualified representative, as determined by the
chairman of the meeting, to present such proposal at such
meeting, the Company need not present such proposal for a vote
at such meeting notwithstanding that proxies in respect of such
vote may have been received by the Company.
67. At every meeting of members, the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting, the chief executive officer shall be the
chairman. In the absence of the chief executive officer, such person as
shall be selected by the Board of Directors shall act as chairman of the
meeting.
68. The chairman may, with the consent of the meeting, adjourn any meeting
from time to time, and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place.
69. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall
be announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any
member present in person or by proxy who disputes the announcement by
the chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the chairman shall
thereupon cause a poll to be taken. If a poll is taken at any meeting,
the result thereof shall be duly recorded in the minutes of that meeting
by the chairman.
70. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any
individual to speak for or represent such member shall be determined by
the law of the jurisdiction where, and by the documents by which, the
person is constituted or derives its existence. In case of doubt, the
directors may in good faith seek legal advice from any qualified person
and unless and until a court of
<PAGE> 14
competent jurisdiction shall otherwise rule, the directors may rely and
act upon such advice without incurring any liability to any member.
71. Any person other than an individual which is a member of the Company may
by resolution of its directors or other governing body authorize such
person as it thinks fit to act as its representative at any meeting of
the Company or of any class of members of the Company, and the person so
authorized shall be entitled to exercise the same powers on behalf of
the person which he represents as that person could exercise if it were
an individual member of the Company.
72. The chairman of any meeting at which a vote is cast by proxy or on
behalf of any person other than an individual may call for a notarially
certified copy of such proxy or authority which shall be produced within
7 days of being so requested or the votes cast by such proxy or on
behalf of such person shall be disregarded.
73. Directors of the Company may attend and speak with members of the
Company and at any separate meeting of the holders of any class or
series of shares in the Company.
74. No business of the Company shall be conducted at a meeting of members
except in accordance with the provisions of these Regulations 50 to 73.
DIRECTORS
75. The number of directors shall be eight. Subject to the requirements of
the Memorandum, the directors may by a resolution of directors, amend
this Regulation 75 to change the number of directors.
76. The continuing directors may act, notwithstanding any casual vacancy in
their body, so long as there remain in office not less than the
prescribed minimum number of directors duly qualified to act, but if the
number falls below the prescribed minimum, the remaining directors shall
not act except for the purpose of filling such vacancy.
77. The shareholding qualification for directors may be fixed, and from time
to time varied, by a resolution of members and unless and until so fixed
no qualification shall be required. A director must be an individual.
78. The directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
APPOINTMENT AND RETIREMENT OF DIRECTORS
79. (a) The first directors of the Company shall be appointed by the
subscribers to the Memorandum, and thereafter, directors shall
be elected by resolution of members to serve the term set forth
in Regulation 79(b).
(b) The resolutions of members adopting these Amended & Restated
Memorandum and Articles of Association (the "Classification
Resolution") shall include a resolution designating all of the
then directors of the Company as either "A" directors, "B"
directors or "C" directors, with each class of director to be as
nearly equal in number as possible. From the date of the
Classification Resolution no directors shall be appointed
without being designated either "A", "B" or "C"
<PAGE> 15
directors so as to ensure that the classes of directors remain
as nearly equal as possible and the term of each director shall
be:
(i) in the case of an "A" director, until the next annual
meeting of members following the date of the
Classification Resolution, and thereafter for a term of
three years;
(ii) in the case of a "B" director, until the second annual
meeting of members following the date of the
Classification Resolution, and thereafter for a term of
three years; and
(iii) in the case of a "C" director, until the third annual
meeting of members following the date of the
Classification Resolution, and thereafter for a term of
three years
with each class to hold office until its successors are duly
elected. Retiring directors shall be eligible for re-election.
80. Any vacancy on the Board of Directors resulting from death, resignation,
removal or other cause and any newly created directorship resulting from
any increase in the authorized number of directors between meetings of
members shall be filled only by the affirmative vote of a majority of
all the directors then in office (even if less than a quorum) and any
director so appointed shall:
(a) be designated by the directors as either a "A", "B" or "C"
director so as to ensure that the classes of directors referred
to in Regulation 79 remain as nearly equal as possible; and
(b) hold office for the remainder of the full term of the class of
directorship in which the vacancy occurred or the new
directorship was created when he or a successor shall be duly
re-elected or elected as the case may be, or until his earlier
death, resignation or removal from office in accordance with
these Articles or any applicable law.
81. (a) Nominations of persons for election to the Board of Directors
shall be made only at a meeting of members and only
(i) by or at the direction of the directors; or
(ii) by a member entitled to vote for the election of
directors who complies with the notice procedures set
out below.
(b) Such nominations, other than those made by or at the direction
of the directors, shall be made pursuant to timely notice in
writing to the Secretary. To be timely, a members' notice shall
be delivered to or mailed and received at the principal
executive offices of the Company not less than 30 days nor more
than 60 days before the meeting, provided, however, that if less
than 40 days notice or prior public disclosure of the date of
the meeting is given or made to members, notice by the member to
be timely must be so received not later than the close of
business on the tenth day following the day on which such notice
of the date of
<PAGE> 16
the meeting was mailed or such public disclosure was made. For
the purposes of this Regulation, any adjournment or postponement
of the original meeting whereby the meeting will reconvene
within 30 days from the original date shall be deemed for the
purposes of this notice to be a continuation of the original
meeting and no nominations by a member of persons to be elected
directors of the Company may be made at any such reconvened
meeting unless pursuant to a notice which was timely for the
meeting on the date originally scheduled. Each such notice shall
set out
(i) the name and address of the member who intends to make
the nomination and of the persons to be nominated;
(ii) a representation that the member is a holder of record
of shares in the Company entitled to vote at such
meeting and that he intends to appear in person or by a
proxy at the meeting to nominate the persons specified
in the notice;
(iii) a description of all arrangements or understandings
between the member and each nominee and any other person
(naming such person) pursuant to which the nominations
are to be made by the member;
(iv) such other information regarding each nominee proposed
by such member as would have been required to be
included in a proxy statement filed pursuant to the
proxy rules of the United States Securities and Exchange
Commission, had each nominee been nominated, or intended
to be nominated, by the directors;
(v) the consent of each nominee to serve as a director of
the Company if so elected; and
(vi) if the member intends to solicit proxies in support of
such member's nominees, a representation to that effect.
82. The chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the aforegoing procedure detailed
in Regulation 81. Only such persons as are nominated in accordance with
the procedures set out in Regulation 81 shall be eligible to serve as
directors of the Company. If at any meeting of members at which an
election of directors ought to take place, the place of any retiring
director is not filled, he shall, if willing, continue in office until
the dissolution of the annual meeting of members in the next year, and
so on from year to year until his place is filled, unless it shall be
determined at such meeting not to fill such vacancy.
83. The appointment of a director shall take effect upon compliance with the
requirements of the Act.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
84. Subject to the provisions of the Act, a director shall cease to hold
office as such only:
(a) if he becomes of unsound mind; or
<PAGE> 17
(b) if (unless he is not required to hold a share qualification) he
has not duly qualified himself within two months of his
appointment or if he ceases to hold the required number of
shares to qualify him for office; or
(c) if he is absent from meetings of the directors for six
consecutive months without leave of the directors, provided that
the directors shall have power to grant any director leave of
absence for any or an indefinite period; or
(d) if he dies; or
(e) one month or, with the permission of the directors earlier,
after he has given notice in writing of his intention to resign;
or
(f) if he shall, pursuant to the provisions of the Act, be
disqualified or cease to hold office or be prohibited from
acting as director; or
(g) if he is removed from office by a resolution signed by all the
other directors; or
(h) if he is removed from office for cause by a resolution of
members. For the purposes hereof, cause means the wilful and
continuous failure by a director to substantially perform his
duties to the Company (other than any such failure resulting
from incapacity due to physical or mental illness) or the wilful
engaging by the director in gross misconduct materially and
demonstrably injurious to the Company; or
(i) if he is removed from office without cause by a resolution of
the majority of the members of the Company, being for the
purposes of this Regulation 84(i) only, an affirmative vote of
the holders of 66 2/3 percent or more of the outstanding votes
of the shares entitled to vote thereon.
REGISTER OF DIRECTORS
85. The Company may determine by resolution of directors to keep a register
of directors containing:
(a) the names and addresses of the persons who are directors of the
Company;
(b) the date on which each person whose name is entered in the
register was appointed as director of the Company; and
(c) the date on which each person named as a director ceased to be a
director of the Company.
86. If the directors determine to maintain a register of directors, a copy
thereof shall be kept at the registered office of the Company and the
Company may determine by resolution of directors to register a copy of
the register with the Registrar of Companies.
<PAGE> 18
MANAGING DIRECTORS
87. The directors may from time to time and by resolution of directors
appoint one or more of their number to be a managing director or joint
managing director and may, subject to any contract between him or them
and the Company, from time to time terminate his or their appointment
and appoint another or others in his or their place or places.
88. A director appointed in terms of the provisions of Regulation 87 to the
office of managing director of the Company may be paid, in addition to
the remuneration payable in terms of Regulation 78, such remuneration
not exceeding a reasonable maximum in each year in respect of such
office as may be determined by a disinterested quorum of the directors.
89. The directors may from time to time, by resolution of directors, entrust
and confer upon a managing director for the time being such of the
powers and authorities vested in them as they think fit, save that no
managing director shall have any power or authority with respect to the
matters requiring a resolution of directors under the Act.
POWERS OF DIRECTORS
90. The business and affairs of the Company shall be managed by the
directors who may exercise all such powers of the Company as are not by
the Act or by the Memorandum or these Articles required to be exercised
by the members of the Company, subject to any delegation of such powers
as may be authorized by these Articles and to such requirements as may
be prescribed by a resolution of members; but no requirement made by a
resolution of members shall prevail if it be inconsistent with these
Articles nor shall such requirement invalidate any prior act of the
directors which would have been valid if such requirement had not been
made.
91. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company. The resolution of directors appointing an agent may authorize
the agent to appoint one or more substitutes or delegates to exercise
some or all of the powers conferred on the agent by the Company.
92. Every officer or agent of the Company has such powers and authority of
the directors, including the power and authority to affix the Seal, as
are set forth in these Articles or in the resolution of directors
appointing the officer or agent, except that no officer or agent has any
power or authority with respect to the matters requiring a resolution of
directors under the Act.
93. The directors may authorise the payment of such donations by the Company
to such religious, charitable, public or other bodies, clubs, funds or
associations or persons as may seem to them advisable in the interests
of the Company.
94. The directors may by resolution of directors exercise all the powers of
the Company to borrow money and to mortgage or charge its undertakings
and property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for any
debt, liability or obligation of the Company or of any third party.
<PAGE> 19
95. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for moneys paid to the Company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as the
case may be, in such manner as shall from time to time be determined by
resolution of directors.
96. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other
encumbrances in which there shall be entered the following particulars
regarding each mortgage, charge and other encumbrance:
(a) the sum secured;
(b) the assets secured;
(c) the name and address of the mortgagee, chargee or other
encumbrancer;
(d) the date of creation of the mortgage, charge or other
encumbrance; and
(e) the date on which the particulars specified above in respect of
the mortgage, charge or other encumbrance are entered in the
register.
97. The Company may further determine by a resolution of directors to
register a copy of the register of mortgages, charges or other
encumbrances with the Registrar of Companies.
PROCEEDINGS OF DIRECTORS
98. The directors of the Company or any committee thereof may meet at such
times and in such manner and places within or outside the British Virgin
Islands as the directors may determine to be necessary or desirable.
99. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
100. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors entitled
to vote at the meeting who do not attend, waive notice of the meeting
and for this purpose, the presence of a director at a meeting shall
constitute waiver on his part. The inadvertent failure to give notice of
a meeting to a director, or the fact that a director has not received
the notice, does not invalidate the meeting.
101. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person not less than
one-half of the total number of directors, unless there are only 2
directors in which case the quorum shall be 2.
102. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Vice-Chairman of the Board of Directors shall
preside. If there is no Vice-Chairman of the Board of Directors or if
the Vice-Chairman of the Board of Directors is not present at the
meeting
<PAGE> 20
the directors present shall choose some one of their number to be
chairman of the meeting.
103. An action that may be taken by the directors or a committee of directors
at a meeting may also be taken by a resolution of directors or a
committee of directors consented to in writing or by telex, telegram,
cable, facsimile or other written electronic communication by three
quarters of the directors or three quarters of the members of the
committee as the case may be, provided that a copy of the proposed
resolution will have been sent to all of the directors or the members of
the committee, for their consent. The consent may be in the form of
counterparts, each counterpart being signed by one or more directors.
104. The directors shall cause the following corporate records to be kept:
(a) minutes of all meetings of directors, members, committees of
directors, committees of officers and committees of members;
(b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees
of members; and
(c) such other accounts and records as the directors by resolution
of directors consider necessary or desirable in order to reflect
the financial position of the Company.
105. The books, records and minutes shall be kept at the registered office of
the Company, its principal place of business or at such other place as
the directors determine.
COMMITTEES
106. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
107. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are
set forth in the resolution of directors establishing the committee,
except that no committee has any power or authority to amend the
Memorandum or these Articles, to appoint directors or fix their
emoluments, or to appoint officers or agents of the Company.
108. The meetings and proceedings of each committee of directors consisting
of 2 or more directors shall be governed mutatis mutandis by the
provisions of these Articles regulating the proceedings of directors so
far as the same are not superseded by any provisions in the resolution
establishing the committee.
OFFICERS
109. The Company may by resolution of directors appoint officers of the
Company at such times as shall be considered necessary or expedient.
Such officers may consist of a Chief Executive Officer or one or more
Joint Chief Executive Officers, a Chairman of the Board of Directors, a
Vice-Chairman of the Board of Directors, a President or one or more
Joint Presidents, a Chief Operating Officer and one or more
Vice-Presidents, Secretaries and Treasurers and such other holders of
any other executive office in the
<PAGE> 21
Company or officers as may from time to time be deemed desirable. Any
number of offices may be held by the same person.
110. The officers shall perform such duties as shall be prescribed at the
time of their appointment subject to any modification in such duties as
may be prescribed thereafter by resolution of directors or resolution of
members, but in the absence of any specific allocation of duties it
shall be the responsibility of the Chairman of the Board of Directors to
preside at meetings of directors and members, the Vice-Chairman to act
in the absence of the Chairman, the President to manage the day to day
affairs of the Company, the Vice-Presidents to act in order of seniority
in the absence of the President but otherwise to perform such duties as
may be delegated to them by the President, the Secretaries to maintain
the share register, minute books and records (other than financial
records) of the Company and to ensure compliance with all procedural
requirements imposed on the Company by applicable law, and the Treasurer
to be responsible for the financial affairs of the Company.
111. The emoluments of all officers shall be fixed by resolution of
directors.
112. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by
resolution of directors. Any vacancy occurring in any office of the
Company may be filled by resolution of directors.
CONFLICT OF INTERESTS
113. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest
or to whom any director is related, including as a director of that
other person, is void or voidable for this reason only or by reason only
that the director is present at the meeting of directors or at the
meeting of the committee of directors that approves the agreement or
transaction or that the vote or consent of the director is counted for
that purpose if the material facts of the interest of each director in
the agreement or transaction and his interest in or relationship to any
other party to the agreement or transaction are disclosed in good faith
or are known by the other directors.
114. A director who has an interest in any particular business to be
considered at a meeting of directors or members may be counted for
purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
1l5. To the full extent permitted by the Act or any other applicable laws
presently or hereafter in effect, no director of the Company shall be
personally liable to the Company or its members for or with respect to
any acts or omissions in the performance of his or her duties as a
director of the Company. Any repeal or modification of this Regulation
115 by a resolution of members shall not adversely affect the right or
protection of a director of the Company existing at the time of such
repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
<PAGE> 22
116. Subject to the limitations hereinafter provided the Company may
indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred
in connection with legal, administrative or investigative proceedings
any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the fact
that the person is or was a director, an officer or a liquidator
of the Company; or
(b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was
acting for, another company or a partnership, joint venture,
trust or other enterprise.
117. The Company may only indemnify a person if the person acted honestly and
in good faith with a view to the best interests of the Company and, in
the case of criminal proceedings, the person had no reasonable cause to
believe that his conduct was unlawful.
118. The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the Company
and as to whether the person had no reasonable cause to believe that his
conduct was unlawful is, in the absence of fraud, sufficient for the
purposes of these Articles, unless a question of law is involved.
119. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself,
create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the Company or that the
person had reasonable cause to believe that his conduct was unlawful.
120. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
121. The Company may purchase and maintain insurance in relation to any
person who is or was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture, trust
or other enterprise, against any liability asserted against the person
and incurred by the person in that capacity, whether or not the Company
has or would have had the power to indemnify the person against the
liability as provided in these Articles.
SEAL
122. The Company may have more than one Seal and references herein to the
Seal shall be references to every Seal which shall have been duly
adopted by resolution of directors. The directors shall provide for the
safe custody of the Seal and for an imprint thereof to be kept at the
Registered Office. Except as otherwise expressly provided herein the
Seal when affixed to any written instrument shall be witnessed and
attested to by the signature of a director or any other person so
authorized from time to time by resolution of directors. Such
authorization may be before or after the Seal is affixed, may be general
or
<PAGE> 23
specific and may refer to any number of sealings. The Directors may
provide for a facsimile of the Seal and of the signature of any director
or authorized person which may be reproduced by printing or other means
on any instrument and it shall have the same force and validity as if
the Seal had been affixed to such instrument and the same had been
signed as hereinbefore described.
DIVIDENDS
123. The Company may by a resolution of directors declare and pay dividends
in money, shares, or other property, but dividends shall only be
declared and paid out of surplus. In the event that dividends are paid
in specie the directors shall have responsibility for establishing and
recording in the resolution of directors authorizing the dividends, a
fair and proper value for the assets to be so distributed.
124. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of
the Company.
125. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund,
and may invest the sum so set aside as a reserve fund upon such
securities as they may select.
126. No dividend shall be declared and paid unless the directors determine
that immediately after the payment of the dividend the Company will be
able to satisfy its liabilities as they become due in the ordinary
course of its business and the realizable value of the assets of the
Company will not be less than the sum of its total liabilities, other
than deferred taxes, as shown in its books of account, and its capital.
In the absence of fraud, the decision of the directors as to the
realizable value of the assets of the Company is conclusive, unless a
question of law is involved.
127. Notice of any dividend that may have been declared shall be given to
each member in manner hereinafter mentioned and all dividends unclaimed
for 3 years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
128. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of
which the Company holds, directly or indirectly, shares having more than
50 percent of the vote in electing directors.
129. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
130. In the case of a dividend of authorized but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
131. In the case of a dividend of authorized but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to
the amount that the shares are entitled to as a preference, if any, in
the assets of the Company upon liquidation of the Company.
<PAGE> 24
132. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having
a proportionately smaller par value does not constitute a dividend of
shares.
ACCOUNTS AND AUDIT
133. The Company may by resolution of members call for the directors to
prepare periodically a profit and loss account and a balance sheet. The
profit and loss account and balance sheet shall be drawn up so as to
give respectively a true and fair view of the profit and loss of the
Company for the financial period and a true and fair view of the state
of affairs of the Company as at the end of the financial period.
134. The Company may by resolution of members call for the accounts to be
examined by auditors.
135. The first auditors of the Company and subsequent auditors shall be
appointed by resolution of directors.
136. The auditors may be members of the Company but no director or other
officer shall be eligible to be an auditor of the Company during his
continuance in office.
137. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be fixed
by resolution of directors; and
(b) subject to the foregoing, shall be fixed by resolution of
members or in such manner as the Company may by resolution of
members determine.
138. The auditors shall examine each profit and loss account and balance
sheet required to be served on every member of the Company or laid
before a meeting of the members of the Company and shall state in a
written report whether or not
(a) in their opinion the profit and loss account and balance sheet
give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the state of
affairs of the Company at the end of that period; and
(b) all the information and explanations required by the auditors
have been obtained.
139. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
140. Every auditor of the Company shall have a right of access at all times
to the books of account and vouchers of the Company, and shall be
entitled to require from the directors and officers of the Company such
information and explanations as he thinks necessary for the performance
of the duties of the auditors.
<PAGE> 25
141. The auditors of the Company shall be entitled to receive notice of, and
to attend any meetings of members of the Company at which the Company's
profit and loss account and balance sheet are to be presented.
NOTICES
142. Any notice, information or written statement to be given by the Company
to members may be served in the case of members holding registered
shares in any way by which it can reasonably be expected to reach each
member or by mail addressed to each member at the address shown in the
share register.
143. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its
registered office, or by leaving it with, or by sending it by registered
mail to, the registered agent of the Company.
144. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing
that the summons, notice, order, document, process, information or
written statement was delivered to the registered office or the
registered agent of the Company or that it was mailed in such time as to
admit to its being delivered to the registered office or the registered
agent of the Company in the normal course of delivery within the period
prescribed for service and was correctly addressed and the postage was
prepaid.
PENSION AND SUPERANNUATION FUNDS
145. The directors may establish and maintain or procure the establishment
and maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities, pensions, allowances or emoluments to, any
persons who are or were at any time in the employment or service of the
Company or any company which is a subsidiary of the Company or is allied
to or associated with the Company or with any such subsidiary, or who
are or were at any time directors or officers of the Company or of any
such other company as aforesaid or who hold or held any salaried
employment or office in the Company or such other company, or any
persons in whose welfare the Company or any such other company as
aforesaid is or has been at any time interested, and to the wives,
widows, families and dependents of any such person, and may make
payments for or towards the insurance of any such persons as aforesaid,
and may do any of the matters aforesaid either alone or in conjunction
with any such other company as aforesaid. Subject always to the proposal
being approved by resolution of members, a director holding any such
employment or office shall be entitled to participate in and retain for
his own benefit any such donation, gratuity, pension allowance or
emolument.
VOLUNTARY WINDING UP AND DISSOLUTION
146. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of director.
<PAGE> 26
CONTINUATION
147. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
We, Midocean Management and Trust Services (BVI) Limited, of 9 Columbus
Centre, Pelican Drive, Road Town, Tortola, British Virgin Islands for the
purpose of incorporating an International Business Company under the laws of the
British Virgin Islands hereby subscribe our name to these Articles of
Association the 30th day of January 1995 in the presence of:
[Sgnd: L Gumbs] [Sgnd: J Prescott]
--------------------------------- ----------------------------------
L GUMBS J PRESCOTT
Witness Subscriber
9 Columbus Centre Authorized Signatory
Pelican Drive, Road Town Midocean Management and Trust
Tortola Services (BVI) Limited
