Exhibit 3.1
THE COMPANIES LAW (2003 REVISION)
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OF THE CAYMAN ISLANDS
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COMPANY LIMITED BY SHARES
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AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
HURRAY! HOLDING CO., LTD.
(Adopted by special resolution passed on May 6, 2004 and effective on
, 2004)
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1. The name of the Company is HURRAY! HOLDING CO., LTD.
2. The Registered Office of the Company shall be at the offices of Codan Trust
Company (Cayman) Limited, Century Yard, Cricket Square, Hutchins Drive,
P.O. Box 2681GT, Georgia Town, Grand Cayman, Cayman Islands or at such
other place as the Directors may from time to time decide.
3. The objects for which the Company is established are unrestricted and shall
include, but without limitation, the following:
(i) (a) To carry on the business of an investment company and to act as
promoters and entrepreneurs and to carry on business as
financiers, capitalists, concessionaires, merchants, brokers,
traders, dealers, agents, importers and exporters and to
undertake and carry on and execute all kinds of investment,
financial, commercial, mercantile, trading and other operations.
(b) To carry on whether as principals, agents or otherwise howsoever
the business of realtors, developers, consultants, estate agents
or managers, builders, contractors, engineers, manufacturers,
dealers in or vendors of all types of property including
services.
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(ii) To exercise and enforce all rights and powers conferred by or
incidental to the ownership of any shares, stock, obligations or other
securities including without prejudice to the generality of the
foregoing all such powers of veto or control as may be conferred by
virtue of the holding by the Company of some special proportion of the
issued or nominal amount thereof, to provide managerial and other
executive, supervisory and consultant services for or in relation to
any company in which the Company is interested upon such terms as may
be thought fit.
(iii) To purchase or otherwise acquire, to sell, exchange, surrender,
lease, mortgage, charge, convert, turn to account, dispose of and deal
with real and personal property and rights of all kinds and, in
particular, mortgages, debentures, produce, concessions, options,
contracts, patents, annuities, licences, stocks, shares, bonds,
policies, book debts, business concerns, undertakings, claims,
privileges and choses in action of all kinds.
(iv) To subscribe for, conditionally or unconditionally, to underwrite,
issue on commission or otherwise, take, hold, deal in and convert
stocks, shares and securities of all kinds and to enter into
partnership or into any arrangement for sharing profits, reciprocal
concessions or cooperation with any person or company and to promote
and aid in promoting, to constitute, form or organise any company,
syndicate or partnership of any kind, for the purpose of acquiring and
undertaking any property and liabilities of the Company or of
advancing, directly or indirectly, the objects of the Company or for
any other purpose which the Company may think expedient.
(v) To stand surety for or to guarantee, support or secure the performance
of all or any of the obligations of any person, firm or company
whether or not related or affiliated to the Company in any manner and
whether by personal covenant or by mortgage, charge or lien upon the
whole or any part of the undertaking, property and assets of the
Company, both present and future, including its uncalled capital or by
any such method and whether or not the Company shall receive valuable
consideration therefor.
(vi) To engage in or carry on any other lawful trade, business or
enterprise which may at any time appear to the Directors or the
Company capable of being conveniently carried on in conjunction with
any of the aforementioned businesses or activities or which may appear
to the Directors or the Company likely to be profitable to the
Company.
In the interpretation of this Memorandum of Association in general and of
this Clause 3 in particular no object, business or power specified or
mentioned shall be limited or restricted by reference to or inference from
any other object, business or power, or the name of the Company, or by the
juxtaposition of two or more objects, businesses or powers and that,
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in the event of any ambiguity in this clause or elsewhere in this
Memorandum of Association, the same shall be resolved by such
interpretation and construction as will widen and enlarge and not restrict
the objects, businesses and powers of and exercisable by the Company.
4. Except as prohibited or limited by the Companies Law (2003 Revision), the
Company shall have full power and authority to carry out any object and
shall have and be capable of from time to time and at all times exercising
any and all of the powers at any time or from time to time exercisable by a
natural person or body corporate in doing in any part of the world whether
as principal, agent, contractor or otherwise whatever may be considered by
it necessary for the attainment of its objects and whatever else may be
considered by it as incidental or conducive thereto or consequential
thereon, including, but without in any way restricting the generality of
the foregoing, the power to make any alterations or amendments to this
Memorandum of Association and the Articles of Association of the Company
considered necessary or convenient in the manner set out in the Articles of
Association of the Company, and the power to do any of the following acts
or things, viz:
to pay all expenses of and incidental to the promotion, formation and
incorporation of the Company; to register the Company to do business in any
other jurisdiction; to sell, lease or dispose of any property of the
Company; to draw, make, accept, endorse, discount, execute and issue
promissory notes, debentures, bills of exchange, bills of lading, warrants
and other negotiable or transferable instruments; to lend money or other
assets and to act as guarantors; to borrow or raise money on the security
of the undertaking or on all or any of the assets of the Company including
uncalled capital or without security; to invest monies of the Company in
such manner as the Directors determine; to promote other companies; to sell
the undertaking of the Company for cash or any other consideration; to
distribute assets in specie to Members of the Company; to make charitable
or benevolent donations; to pay pensions or gratuities or provide other
benefits in cash or kind to Directors, officers, employees, past or present
and their families; to purchase Directors and officers liability insurance
and to carry on any trade or business and generally to do all acts and
things which, in the opinion of the Company or the Directors, may be
conveniently or profitably or usefully acquired and dealt with, carried on,
executed or done by the Company in connection with the business aforesaid
PROVIDED THAT the Company shall only carry on the businesses for which a
licence is required under the laws of the Cayman Islands when so licensed
under the terms of such laws.
5. The liability of each Member is limited to the amount from time to time
unpaid on such Member's shares.
6. The share capital of the Company is US$250,000 divided into 5,000,000,000
shares of a nominal or par value of US$0.00005 each with power for the
Company insofar as is permitted by law, to redeem or purchase any of its
shares and to increase or reduce the said capital subject to the provisions
of the Companies Law (2003 Revision) and the Articles of Association and to
issue any part of its capital, whether original, redeemed or
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increased with or without any preference, priority or special privilege or
subject to any postponement of rights or to any conditions or restrictions
and so that unless the conditions of issue shall otherwise expressly
declare every issue of shares whether declared to be preference or
otherwise shall be subject to the powers hereinbefore contained.
7. If the Company is registered as exempted, its operations will be carried on
subject to the provisions of Section 193 of the Companies Law (2003
Revision) and, subject to the provisions of the Companies Law (2003
Revision) and the Articles of Association, it shall have the power to
register by way of continuation as a body corporate limited by shares under
the laws of any jurisdiction outside the Cayman Islands and to be
deregistered in the Cayman Islands.
THE COMPANIES LAW (2003 REVISION)
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OF THE CAYMAN ISLANDS
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COMPANY LIMITED BY SHARES
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AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
HURRAY! HOLDING CO., Ltd.
(Adopted by special resolution passed on May 6, 2004 and effective on
, 2004)
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1. In these Articles Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context inconsistent
therewith,
"Articles" means these Articles as originally framed or
as from time to time altered by Special
Resolution.
"Auditors" means the persons for the time being
performing the duties of auditors of the
Company.
"Company" means the above-named Company.
"debenture" means debenture stock, mortgages, bonds and
any other such securities of the Company
whether constituting a charge on the assets of
the Company or not.
"Directors" means the directors for the time being of the
Company.
"dividend" includes bonus.
"Member" shall bear the meaning as ascribed to it in
the Statute.
"month" means calendar month.
"ordinary resolution" a resolution passed by a simple
majority of votes cast by such Members as,
being entitled to do so, vote in
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person or, in the case of any Member being a
corporation, by its duly authorized
representative or, where proxies are allowed,
by proxy at a general meeting of which not
less than 5 days' notice has been duly given.
"paid-up" means paid-up and/or credited as paid-up.
"registered office" means the registered office for the time being
of the Company.
"Seal" means the common seal of the Company and
includes every duplicate seal.
"Secretary" includes an Assistant Secretary and any person
appointed to perform the duties of Secretary
of the Company.
"share" includes a fraction of a share.
"Special Resolution" has the same meaning as in the
Statute and includes a resolution approved in
writing as described therein.
"Statute" means the Companies Law of the Cayman Islands
as amended and every statutory modification or
re-enactment thereof for the time being in
force.
"written" and "in writing" include all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa.
Words importing the masculine gender only include the feminine gender.
Words importing persons only include corporations.
2. The business of the Company may be commenced as soon after incorporation as
the Directors shall see fit, notwithstanding that part only of the shares
may have been allotted.
3. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and establishment
of the Company including the expenses of registration.
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CERTIFICATES FOR SHARES
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4. Certificates representing shares of the Company shall be in such form as
shall be determined by the Directors. Such certificates may be under Seal.
All certificates for shares shall be consecutively numbered or otherwise
identified and shall specify the shares to which they relate. The name and
address of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered in the
register of Members of the Company. All certificates surrendered to the
Company for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and cancelled. The Directors may authorise certificates to
be issued with the seal and authorised signature(s) affixed by some method
or system of mechanical process.
5. Notwithstanding Article 4 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on payment of a fee of one
dollar (US$1.00) or such less sum and on such terms (if any) as to
evidence and indemnity and the payment of the expenses incurred by the
Company in investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
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6. Subject to the provisions, if any, in that behalf in the Memorandum of
Association and to any direction that may be given by the Company in
general meeting and without prejudice to any special rights previously
conferred on the holders of existing shares, the Directors may allot,
issue, grant options over or otherwise dispose of shares of the Company
(including fractions of a share) with or without preferred, deferred or
other special rights or restrictions, whether in regard to dividend,
voting, return of capital or otherwise and to such persons, at such times
and on such other terms as they think proper. The Company shall not issue
shares in bearer form.
7. The Company shall maintain a register of its Members and every person whose
name is entered as a Member in the register of Members shall be entitled
without payment to receive within two months after allotment or lodgement
of transfer (or within such other period as the conditions of issue shall
provide) one certificate for all his shares or several certificates each
for one or more of his shares upon payment of fifty cents (US$0.50) for
every certificate after the first or such less sum as the Directors shall
from time to time determine provided that in respect of a share or shares
held jointly by several persons the Company shall not be bound to issue
more than one certificate and delivery of a certificate for a share to one
of the several joint holders shall be sufficient delivery to all such
holders.
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TRANSFER OF SHARES
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8. The instrument of transfer of any share shall be in writing and shall be
executed by or on behalf of the transferor and the transferor shall be
deemed to remain the holder of a share until the name of the transferee is
entered in the register in respect thereof.
REDEEMABLE SHARES
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9. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are, or at
the option of the Company or the holder are, to be redeemed on such
terms and in such manner as the Company, before the issue of the
shares, may by Special Resolution determine.
(b) Subject to the provisions of the Statute and the Memorandum of
Association, the Company may purchase its own shares (including
fractions of a share), including any redeemable shares, provided that
the manner of purchase has first been authorised by the Company in
general meeting and may make payment therefor in any manner authorised
by the Statute, including out of capital.
VARIATION OF RIGHTS OF SHARES
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10. If at any time the share capital of the Company is divided into different
classes of shares, the rights attached to any class (unless otherwise
provided by the terms of issue of the shares of that class) may, whether or
not the Company is being wound-up, be varied with the consent in writing of
the holders of three-fourths of the issued shares of that class, or with
the sanction of a Special Resolution passed at a general meeting of the
holders of the shares of that class.
The provisions of these Articles relating to general meetings shall apply
to every such general meeting of the holders of one class of shares except
that the necessary quorum shall be one person holding or representing by
proxy at least one-third of the issued shares of the class and that any
holder of shares of the class present in person or by proxy may demand a
poll.
11. The rights conferred upon the holders of the shares of any class issued
with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be
varied by the creation or issue of further shares ranking pari passu
therewith.
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COMMISSION ON SALE OF SHARES
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12. The Company may in so far as the Statute from time to time permits pay a
commission to any person in consideration of his subscribing or agreeing to
subscribe whether absolutely or conditionally for any shares of the
Company. Such commissions may be satisfied by the payment of cash or the
lodgement of fully or partly paid-up shares or partly in one way and partly
in the other. The Company may also on any issue of shares pay such
brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
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13. 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 share, or any interest in any fractional
part of a share, or (except only as is otherwise provided by these Articles
or the Statute) any other rights in respect of any share except an absolute
right to the entirety thereof in the registered holder.
LIEN ON SHARES
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14. The Company shall have a first and paramount lien and charge on all shares
(whether fully paid-up or not) registered in the name of a Member (whether
solely or jointly with others) for all debts, liabilities or engagements to
or with the Company (whether presently payable or not) by such Member or
his estate, either alone or jointly with any other person, whether a Member
or not, but the Directors may at any time declare any share to be wholly or
in part exempt from the provisions of this Article. The registration of a
transfer of any such share shall operate as a waiver of the Company's lien
(if any) thereon. The Company's lien (if any) on a share shall extend to
all dividends or other monies payable in respect thereof.
15. The Company may sell, in such manner as the Directors think fit, any shares
on which the Company has a lien, but no sale shall be made unless a sum in
respect of which the lien exists is presently payable, nor until the
expiration of fourteen days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the lien exists as
is presently payable, has been given to the registered holder or holders
for the time being of the share, or the person, of which the Company has
notice, entitled thereto by reason of his death or bankruptcy.
16. To give effect to any such sale the Directors may authorise some person to
transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in any such transfer, and
he shall not be bound to see to the application
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of the purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
17. The proceeds of such sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as
is presently payable and the residue, if any, shall (subject to a like lien
for sums not presently payable as existed upon the shares before the sale)
be paid to the person entitled to the shares at the date of the sale.
CALL ON SHARES
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18. (a) The Directors may from time to time make calls upon the Members in
respect of any monies unpaid on their shares (whether on account of
the nominal value of the shares or by way of premium or otherwise) and
not by the conditions of allotment thereof made payable at fixed
terms, provided that no call shall be payable at less than one month
from the date fixed for the payment of the last preceding call, and
each Member shall (subject to receiving at least fourteen days notice
specifying the time or times of payment) pay to the Company at the
time or times so specified the amount called on the shares. A call may
be revoked or postponed as the Directors may determine. A call may be
made payable by instalments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
19. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding ten per cent per annum as
the Directors may determine, but the Directors shall be at liberty to waive
payment of such interest either wholly or in part.
20. Any sum which by the terms of issue of a share becomes payable on allotment
or at any fixed date, whether on account of the nominal value of the share
or by way of premium or otherwise, shall for the purposes of these Articles
be deemed to be a call duly made, notified and payable on the date on which
by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
21. The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
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22. (a) The Directors may, if they think fit, receive from any Member willing
to advance the same, all or any part of the monies uncalled and unpaid
upon any shares held by him, and upon all or any of the monies so
advanced may (until the same would but for such advances, become
payable) pay interest at such rate not exceeding (unless the Company
in general meeting shall otherwise direct) seven per cent per annum,
as may be agreed upon between the Directors and the Member paying such
sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member paying
such sum to any portion of a dividend declared in respect of any
period prior to the date upon which such sum would, but for such
payment, become presently payable.
FORFEITURE OF SHARES
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23. (a) If a Member fails to pay any call or instalment of a call or to make
any payment required by the terms of issue on the day appointed for
payment thereof, the Directors may, at any time thereafter during such
time as any part of the call, instalment or payment remains unpaid,
give notice requiring payment of so much of the call, instalment or
payment as is unpaid, together with any interest which may have
accrued and all expenses that have been incurred by the Company by
reason of such non-payment. Such notice shall name a day (not earlier
than the expiration of fourteen days from the date of giving of the
notice) on or before which the payment required by the notice is to be
made, and shall state that, in the event of non-payment at or before
the time appointed the shares in respect of which such notice was
given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which the notice has been given may at
any time thereafter, before the payment required by the notice has
been made, be forfeited by a resolution of the Directors to that
effect. Such forfeiture shall include all dividends declared in
respect of the forfeited share and not actually paid before the
forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such terms
and in such manner as the Directors think fit and at any time before a
sale or disposition the forfeiture may be cancelled on such terms as
the Directors think fit.
24. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares, but shall, notwithstanding, remain liable
to pay to the Company all monies which, at the date of forfeiture were
payable by him to the Company in respect of the shares together with
interest thereon, but his liability shall cease if and when the Company
shall have received payment in full of all monies whenever payable in
respect of the shares.
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25. A certificate in writing under the hand of one Director or the Secretary of
the Company that a share in the Company has been duly forfeited on a date
stated in the declaration shall be conclusive evidence of the fact therein
stated as against all persons claiming to be entitled to the share. The
Company may receive the consideration given for the share on any sale or
disposition thereof and may execute a transfer of the share in favour of
the person to whom the share is sold or disposed of and he shall thereupon
be registered as the holder of the share and shall not be bound to see to
the application of the purchase money, if any, nor shall his title to the
share be affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture, sale or disposal of the share.
26. The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum which, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the
share or by way of premium as if the same had been payable by virtue of a
call duly made and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
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27. The Company shall be entitled to charge a fee not exceeding one dollar
(US$l.00) on the registration of every probate, letters of administration,
certificate of death or marriage, power of attorney, notice in lieu of
distringas, or other instrument.
TRANSMISSION OF SHARES
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28. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised
by the Company as having any title to his interest in the shares, but
nothing herein contained shall release the estate of any such deceased
holder from any liability in respect of any shares which had been held by
him solely or jointly with other persons.
29. (a) Any person becoming entitled to a share in consequence of the death or
bankruptcy or liquidation or dissolution of a Member (or in any other
way than by transfer) may, upon such evidence being produced as may
from time to time be required by the Directors and subject as
hereinafter provided, elect either to be registered himself as holder
of the share or to make such transfer of the share to such other
person nominated by him as the deceased or bankrupt person could have
made and to have such person registered as the transferee thereof, but
the Directors shall, in either case, have the same right to decline or
suspend registration as they would have had in the case of a transfer
of the share by that Member before his death or bankruptcy as the case
may be.
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(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in
writing signed by him stating that he so elects.
30. A person becoming entitled to a share by reason of the death or bankruptcy
or liquidation or dissolution of the holder (or in any other case than by
transfer) shall be entitled to the same dividends and other advantages to
which he would be entitled if he were the registered holder of the share,
except that he shall not, before being registered as a Member in respect of
the share, be entitled in respect of it to exercise any right conferred by
membership in relation to meetings of the Company PROVIDED HOWEVER that the
Directors may at any time give notice requiring any such person to elect
either to be registered himself or to transfer the share and if the notice
is not complied with within ninety days the Directors may thereafter
withhold payment of all dividends, bonuses or other monies payable in
respect of the share until the requirements of the notice have been
complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION, ALTERATION
OF SHARE CAPITAL & CHANGE OF LOCATION OF REGISTERED OFFICE
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31. (a) Subject to and in so far as permitted by the provisions of the
Statute, the Company may from time to time by Special Resolution alter
or amend its Memorandum of Association with respect to any objects,
powers or other matters specified therein provided always that the
Company may by ordinary resolution:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution
shall prescribe and with such rights, priorities and privileges
annexed thereto, as the Company in general meeting may determine;
(ii) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the
whole or any part of its share capital into shares of smaller
amount than is fixed by the Memorandum of Association or into
shares without nominal or par value;
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original
share capital.
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(c) Without prejudice to Article 9 hereof and subject to the provisions of
the Statute, the Company may by Special Resolution reduce its share
capital and any capital redemption reserve fund.
(d) Subject to the provisions of the Statute, the Company may by
resolution of the Directors change the location of its registered
office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
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32. For the purpose of determining Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or Members entitled to
receive payment of any dividend, or in order to make a determination of
Members for any other proper purpose, the Directors of the Company may
provide that the register of Members shall be closed for transfers for a
stated period but not to exceed in any case forty 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.
33. 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.
34. If the register of Members is not so closed and no record date is fixed for
the determination of Members entitled to notice of or to vote at a meeting
of Members or Members entitled to receive payment of a dividend, the date
on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, such determination shall apply to
any adjournment thereof.
GENERAL MEETING
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35. (a) Subject to paragraph (c) hereof, the Company shall within one year of
its incorporation and in each year of its existence thereafter hold a
general meeting as its annual general meeting and shall specify the
meeting as such in the notices calling it. The annual general meeting
shall be held at such time and place as the Directors shall appoint
and if no other time and place is prescribed by them, it shall
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be held at the registered office on the second Wednesday in December
of each year at ten o'clock in the morning.
(b) At these meetings the report of the Directors (if any) shall be
presented.
(c) If the Company is exempted as defined in the Statute it may but shall
not be obliged to hold an annual general meeting.
36. (a) The Directors may whenever they think fit, and they shall on the
requisition of Members of the Company holding at the date of the
deposit of the requisition not less than one-tenth of such of the
paid-up capital of the Company as at the date of the deposit carries
the right of voting at general meetings of the Company, proceed to
convene a general meeting of the Company.
(b) The requisition must state the objects of the meeting and must be
signed by the requisitionists and deposited at the registered office
of the Company and may consist of several documents in like form each
signed by one or more requisitionists.
(c) If the Directors do not within twenty-one days from the date of the
deposit of the requisition duly proceed to convene a general meeting,
the requisitionists, or any of them representing more than one-half of
the total voting rights of all of them, may themselves convene a
general meeting, but any meeting so convened shall not be held after
the expiration of three months after the expiration of the said
twenty-one days.
(d) A general meeting convened as aforesaid by requisitionists shall be
convened in the same manner as nearly as possible as that in which
general meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
--------------------------
37. At least five days' notice shall be given of an annual general meeting or
any other general meeting. Every notice shall be exclusive of the day on
which it is given or deemed to be given and of the day for which it is
given and shall specify the place, the day and the hour of the meeting and
the general nature of the business and shall be given in manner hereinafter
mentioned or in such other manner if any as may be prescribed by the
Company PROVIDED that a general meeting of the Company shall, whether or
not the notice specified in this regulation has been given and whether or
not the provisions of Article 36 have been complied with, be deemed to have
been duly convened if it is so agreed:
12
(a) in the case of a general meeting called as an annual general meeting
by all the Members entitled to attend and vote thereat or their
proxies; and
(b) in the case of any other general meeting by a majority in number of
the Members having a right to attend and vote at the meeting, being a
majority together holding not less than seventy-five per cent in
nominal value or in the case of shares without nominal or par value
seventy-five per cent of the shares in issue, or their proxies.
38. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
-------------------------------
39. No business shall be transacted at any general meeting unless a quorum is
present. The presence in person or by proxy of Members holding at least
one-third of the issued Shares entitled to vote at the meeting shall be a
quorum.
40. A resolution (including a Special Resolution) in writing (in one or more
counterparts) signed by all Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations
by their duly authorised representatives) shall be as valid and effective
as if the same had been passed at a general meeting of the Company duly
convened and held.
41. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of Members,
shall be dissolved and in any other case it shall stand adjourned to the
same day in the next week at the same time and place or to such other time
or such other place as the Directors may determine and if at the adjourned
meeting a quorum is not present within half an hour from the time appointed
for the meeting the Members present shall be a quorum.
42. The Chairman, if any, of the Board of Directors shall preside as Chairman
at every general meeting of the Company, or if there is no such Chairman,
or if he shall not be present within fifteen minutes after the time
appointed for the holding of the meeting, or is unwilling to act, the
Directors present shall elect one of their number to be Chairman of the
meeting.
43. If at any general meeting no Director is willing to act as Chairman or if
no Director is present within fifteen minutes after the time appointed for
holding the meeting, the Members present shall choose one of their number
to be Chairman of the meeting.
44. The Chairman may, with the consent of any general meeting duly constituted
hereunder, and shall if so directed by the meeting, adjourn the meeting
from time to time and from
13
place to place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting from which
the adjournment took place. When a general meeting is adjourned for thirty
days or more, notice of the adjourned meeting shall be given as in the case
of an original meeting; save as aforesaid it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an
adjourned general meeting.
45. At any general meeting a resolution put to the vote of the meeting shall be
decided on a show of hands unless a poll is, before or on the declaration
of the result of the show of hands, demanded by the Chairman or any other
Member present in person or by proxy.
46. Unless a poll be so demanded a declaration by the Chairman that a
resolution has on a show of hands been carried, or carried unanimously, or
by a particular majority, or lost, and an entry to that effect in the
Company's Minute Book containing the Minutes of the proceedings of the
meeting shall be conclusive evidence of that fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
47. The demand for a poll may be withdrawn.
48. Except as provided in Article 50, if a poll is duly demanded it shall be
taken in such manner as the Chairman directs and the result of the poll
shall be deemed to be the resolution of the general meeting at which the
poll was demanded.
49. In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman of the general meeting at which the show of hands takes
place or at which the poll is demanded, shall be entitled to a second or
casting vote.
50. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs
and any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
----------------
51. Subject to any rights or restrictions for the time being attached to any
class or classes of shares, on a show of hands every Member of record
present in person or by proxy at a general meeting shall have one vote and
on a poll every Member of record present in person or by proxy shall have
one vote for each share registered in his name in the register of Members.
52. In the case of joint holders of record the vote of the senior who tenders a
vote, whether in person or by proxy, shall be accepted to the exclusion of
the votes of the other joint
14
holders, and for this purpose seniority shall be determined by the order in
which the names stand in the register of Members.
53. A Member of unsound mind, or in respect of whom an order has been made by
any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other
person in the nature of a committee, receiver or curator bonis appointed by
that court, and any such committee, receiver, curator bonis or other
persons may vote by proxy.
54. No Member shall be entitled to vote at any general meeting unless he is
registered as a shareholder of the Company on the record date for such
meeting nor unless all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
55. No objection shall be raised to the qualification of any voter except at
the general meeting or adjourned general meeting at which the vote objected
to is given or tendered and every vote not disallowed at such general
meeting shall be valid for all purposes. Any such objection made in due
time shall be referred to the Chairman of the general meeting whose
decision shall be final and conclusive.
56. On a poll or on a show of hands votes may be given either personally or by
proxy.
PROXIES
-------
57. The instrument appointing a proxy shall be in writing and shall be executed
under the hand of the appointor or of his attorney duly authorised in
writing, or, if the appointor is a corporation under the hand of an officer
or attorney duly authorised in that behalf. A proxy need not be a Member of
the Company.
58. The instrument appointing a proxy shall be deposited at the registered
office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for
holding the meeting, or adjourned meeting provided that the Chairman of the
Meeting may at his discretion direct that an instrument of proxy shall be
deemed to have been duly deposited upon receipt of telex, cable or telecopy
confirmation from the appointor that the instrument of proxy duly signed is
in the course of transmission to the Company.
59. The instrument appointing a proxy may be in any usual or common form and
may be expressed to be for a particular meeting or any adjournment thereof
or generally until revoked. An instrument appointing a proxy shall be
deemed to include the power to demand or join or concur in demanding a
poll.
60. A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or insanity of the principal or
revocation of the proxy
15
or of the authority under which the proxy was executed, or the transfer of
the share in respect of which the proxy is given provided that no
intimation in writing of such death, insanity, revocation or transfer as
aforesaid shall have been received by the Company at the registered office
before the commencement of the general meeting, or adjourned meeting at
which it is sought to use the proxy.
61. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision by
resolution of its Directors or other governing body authorise such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of Members of the Company, and the person so authorised
shall be entitled to exercise the same powers on behalf of the corporation
which he represents as the corporation could exercise if it were an
individual Member of record of the Company.
62. Shares of its own capital belonging to the Company or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of
outstanding shares at any given time.
CORPORATE REPRESENTATIVES
-------------------------
63. Any corporation which is a member of the Company may, by resolution of its
directors or other governing body or by power of attorney, authorize 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 authorized 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.
CLEARING HOUSES
---------------
64. If a clearing house (or its nominee) is a member of the Company it may, by
resolution of its directors or other governing body or by power of
attorney, authorize such person or persons as it thinks fit to act as its
representative or representatives at any general meeting of the Company or
at any general meeting of any class of members of the Company provided
that, if more than one person is so authorized, the authorization shall
specify the number and class of shares in respect of which each such person
is so authorized. A person so authorized pursuant to this provision shall
be entitled to exercise the same powers on behalf of the clearing house (or
its nominee) which he represents as that clearing house (or its nominee)
could exercise if it were an individual member of the Company holding the
number and class of shares specified in such authorization.
16
DIRECTORS
---------
65. There shall be a Board of Directors consisting of not more than ten persons
(exclusive of alternate Directors) PROVIDED HOWEVER that the Company may
from time to time by ordinary resolution increase or reduce the limits in
the number of Directors. The first Directors of the Company shall be
determined in writing by, or appointed by a resolution of, the subscribers
of the Memorandum of Association or a majority of them.
66. The remuneration to be paid to the Directors shall be such remuneration as
the Directors shall determine. Such remuneration shall be deemed to accrue
from day to day. The Directors shall also be entitled to be paid their
travelling, hotel and other expenses properly incurred by them in going to,
attending and returning from meetings of the Directors, or any committee of
the Directors, or general meetings of the Company, or otherwise in
connection with the business of the Company, or to receive a fixed
allowance in respect thereof as may be determined by the Directors from
time to time, or a combination partly of one such method and partly the
other.
67. The Directors may by resolution award special remuneration to any Director
of the Company undertaking any special work or services for, or undertaking
any special mission on behalf of, the Company other than his ordinary
routine work as a Director. Any fees paid to a Director who is also counsel
or solicitor to the Company, or otherwise serves it in a professional
capacity shall be in addition to his remuneration as a Director.
68. A Director or alternate Director may hold any other office or place of
profit under the Company (other than the office of Auditor) in conjunction
with his office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine.
69. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled
to remuneration for professional services as if he were not a Director or
alternate Director.
70. A shareholding qualification for Directors may be fixed by the Company in
general meeting, but unless and until so fixed no qualification shall be
required.
71. A Director or alternate Director of the Company may be or become a director
or other officer of or otherwise interested in any company promoted by the
Company or in which the Company may be interested as shareholder or
otherwise and no such Director or alternate Director shall be accountable
to the Company for any remuneration or other benefits received by him as a
director or officer of, or from his interest in, such other company.
17
72. No person shall be disqualified from the office of Director or alternate
Director or prevented by such office from contracting with the Company,
either as vendor, purchaser or otherwise, nor shall any such contract or
any contract or transaction entered into by or on behalf of the Company in
which any Director or alternate Director shall be in any way interested be
or be liable to be avoided, nor shall any Director or alternate Director so
contracting or being so interested be liable to account to the Company for
any profit 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.
73. 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 72 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE DIRECTORS
-------------------
74. Subject to the exception contained in Article 82, a Director who expects to
be unable to attend Directors' Meetings because of absence, illness or
otherwise may appoint any person to be an alternate Director to act in his
stead and such appointee whilst he holds office as an alternate Director
shall, in the event of absence therefrom of his appointor, be entitled to
attend meetings of the Directors and to vote thereat and to do, in the
place and stead of his appointor, any other act or thing which his
appointor is permitted or required to do by virtue of his being a Director
as if the alternate Director were the appointor, other than appointment of
an alternate to himself, and he shall ipso facto vacate office if and when
his appointor ceases to be a Director or removes the appointee from office.
Any appointment or removal under this Article shall be effected by notice
in writing under the hand of the Director making the same.
POWERS AND DUTIES OF DIRECTORS
------------------------------
75. The business of the Company shall be managed by the Directors (or a sole
Director if only one is appointed) who may pay all expenses incurred in
promoting, registering and setting up the Company, and may exercise all
such powers of the Company as are not, from time to time by the Statute, or
by these Articles, or such regulations, being not inconsistent with the
aforesaid, as may be prescribed by the Company in general meeting required
to be
18
exercised by the Company in general meeting PROVIDED HOWEVER that no
regulations made by the Company in general meeting shall invalidate any
prior act of the Directors which would have been valid if that regulation
had not been made.
76. The Directors may from time to time and at any time by powers of attorney
appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys of
the Company for such purpose and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such conditions as
they may think fit, and any such powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any
such attorneys as the Directors may think fit and may also authorise any
such attorney to delegate all or any of the powers, authorities and
discretions vested in him.
77. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the
case may be in such manner as the Directors shall from time to time by
resolution determine.
78. The Directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented thereat by
an alternate or by proxy) present at each meeting of the Directors and
of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the Company and
of the Directors and of committees of Directors.
79. The Directors on behalf of the Company may pay a gratuity or pension or
allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or dependants
and may make contributions to any fund and pay premiums for the purchase or
provision of any such gratuity, pension or allowance.
80. The Directors may exercise all the powers of the Company to borrow money
and to mortgage or charge its undertaking, property and uncalled capital or
any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
19
MANAGEMENT
----------
81. (a) The Directors may from time to time provide for the management of the
affairs of the Company in such manner as they shall think fit and the
provisions contained in the three next following paragraphs shall be
without prejudice to the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs
of the Company and may appoint any persons to be members of such
committees or local boards or any managers or agents and may fix their
remuneration.
(c) The Directors from time to time and at any time may delegate to any
such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the Directors
and may authorise the members for the time being of any such local
board, or any of them to fill up any vacancies therein and to act
notwithstanding vacancies and any such appointment or delegation may
be made on such terms and subject to such conditions as the Directors
may think fit and the Directors may at any time remove any person so
appointed and may annul or vary any such delegation, but no person
dealing in good faith and without notice of any such annulment or
variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by the Directors to
subdelegate all or any of the powers, authorities, and discretions for
the time being vested in them.
MANAGING DIRECTORS
------------------
82. The Directors may, from time to time, appoint one or more of their body
(but not an alternate Director) to the office of Managing Director for such
term and at such remuneration (whether by way of salary, or commission, or
participation in profits, or partly in one way and partly in another) as
they may think fit but his appointment shall be subject to determination
ipso facto if he ceases from any cause to be a Director and no alternate
Director appointed by him can act in his stead as a Director or Managing
Director.
83. The Directors may entrust to and confer upon a Managing Director any of the
powers exercisable by them upon such terms and conditions and with such
restrictions as they may think fit and either collaterally with or to the
exclusion of their own powers and may from time to time revoke, withdraw,
alter or vary all or any of such powers.
20
PROCEEDINGS OF DIRECTORS
------------------------
84. Except as otherwise provided by these Articles, the Directors shall meet
together for the despatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising at any
meeting shall be decided by a majority of votes of the Directors and
alternate Directors present at a meeting at which there is a quorum, the
vote of an alternate Director not being counted if his appointor be present
at such meeting. In case of an equality of votes, the Chairman shall have a
second or casting vote.
85. A Director or alternate Director may, and the Secretary on the requisition
of a Director or alternate Director shall, at any time summon a meeting of
the Directors by at least three days' notice in writing to every Director
and alternate Director which notice shall set forth the general nature of
the business to be considered unless notice is waived by all the Directors
(or their alternates) either at, before or after the meeting is held and
PROVIDED FURTHER if notice is given in person, by cable, telex or telecopy
the same shall be deemed to have been given on the day it is delivered to
the Directors or transmitting organisation as the case may be. The
provisions of Article 38 shall apply mutatis mutandis with respect to
notices of meetings of Directors.
86. The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors and unless so fixed shall be two, a Director
and his appointed alternate Director being considered only one person for
this purpose, PROVIDED ALWAYS that if there shall at any time be only a
sole Director the quorum shall be one. For the purposes of this Article an
alternate Director or proxy appointed by a Director shall be counted in a
quorum at a meeting at which the Director appointing him is not present.
87. The continuing Directors may act notwithstanding any vacancy in their body,
but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to that number, or of summoning a general meeting of
the Company, but for no other purpose.
88. The Directors may elect a Chairman of their Board and determine the period
for which he is to hold office; but if no such Chairman is elected, or if
at any meeting the Chairman is not present within five minutes after the
time appointed for holding the same, the Directors present may choose one
of their number to be Chairman of the meeting.
89. The Directors may delegate any of their powers to committees consisting of
such member or members of the Board of Directors (including Alternate
Directors in the absence of their appointors) as they think fit; any
committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the Directors.
21
90. A committee may meet and adjourn as it thinks proper. Questions arising at
any meeting shall be determined by a majority of votes of the members
present, and in the case of an equality of votes the Chairman shall have a
second or casting vote.
91. All acts done by any meeting of the Directors or of a committee of
Directors (including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was some defect
in the appointment of any Director or alternate Director, or that they or
any of them were disqualified, be as valid as if every such person had been
duly appointed and qualified to be a Director or alternate Director as the
case may be.
92. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. A resolution in writing (in one or more
counterparts), signed by all the Directors for the time being or all the
members of a committee of Directors (an alternate Director being entitled
to sign such resolution on behalf of his appointor) shall be as valid and
effectual as if it had been passed at a meeting of the Directors or
committee as the case may be duly convened and held.
93. (a) A Director may be represented at any meetings of the Board of
Directors by a proxy appointed by him in which event the presence or
vote of the proxy shall for all purposes be deemed to be that of the
Director.
(b) The provisions of Articles 57-60 shall mutatis mutandis apply to the
appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
------------------------------
94. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns the
office of Director;
(b) if he absents himself (without being represented by proxy or an
alternate Director appointed by him) from three consecutive meetings
of the Board of Directors without special leave of absence from the
Directors, and they pass a resolution that he has by reason of such
absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or composition
with his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
22
APPOINTMENT AND REMOVAL OF DIRECTORS
------------------------------------
95. The directors shall be divided into three classes, designated Class I,
Class II, and Class III, as nearly equal in number as the then total number
of directors permits. At the 2005 annual meeting of shareholders, Class I
directors shall be elected for a one-year term, Class II directors for a
two-year term and Class III directors for a three-year term. At each
succeeding annual meeting of shareholders beginning in 2006, successors to
the class of directors whose terms expire at that annual meeting shall be
elected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible,
and any additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that
shall coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent
director. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of preferred share issued by the Company shall have
the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships shall be
governed by the applicable terms of these Articles and any certificate of
designation creating such class or series of preferred share, and such
directors so elected shall not be divided into classes pursuant to this
Article 95 unless expressly provided by such terms.
96. (a) The Company may by ordinary resolution appoint any person to be a
Director and may in like manner remove any Director and may in like
manner appoint another person in his stead.
(b) The Directors shall have power at any time and from time to time to
appoint any person to be a Director, either to fill a casual vacancy
or as an addition to the existing Directors but so that the total
amount of Directors (exclusive of alternate Directors) shall not at
any time exceed the number fixed in accordance with these Articles.
PRESUMPTION OF ASSENT
---------------------
97. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed
to have assented to the action taken unless his dissent shall be entered in
the Minutes of the meeting or unless he shall file his written dissent from
such action with the person acting as the Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to
such person immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favour of such action.
23
SEAL
----
98. (a) The Company may, if the Directors so determine, have a Seal which
shall, subject to paragraph (c) hereof, only be used by the authority
of the Directors or of a committee of the Directors authorised by the
Directors in that behalf and every instrument to which the Seal has
been affixed shall be signed by one person who shall be either a
Director or the Secretary or Secretary-Treasurer or some person
appointed by the Directors for the purpose.
(b) The Company may have a duplicate Seal or Seals each of which shall be
a facsimile of the Common Seal of the Company and, if the Directors so
determine, with the addition on its face of the name of every place
where it is to be used.
(c) A Director, Secretary or other officer or representative or attorney
may without further authority of the Directors affix the Seal of the
Company over his signature alone to any document of the Company
required to be authenticated by him under Seal or to be filed with the
Registrar of Companies in the Cayman Islands or elsewhere wheresoever.
OFFICERS
--------
99. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such
other officers as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions as
to disqualification and removal as the Directors from time to time
prescribe.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
------------------------------------
100. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of the
Company outstanding and authorise payment of the same out of the funds of
the Company lawfully available therefor.
101. The Directors may, before declaring any dividends or distributions, set
aside such sums as they think proper as a reserve or reserves which shall
at the discretion of the Directors, be applicable for any purpose of the
Company and pending such application may, at the like discretion, be
employed in the business of the Company.
24
102. 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 Statute.
103. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends or distributions, if dividends or distributions are
to be declared on a class of shares they shall be declared and paid
according to the amounts paid or credited as paid on the shares of such
class outstanding on the record date for such dividend or distribution as
determined in accordance with these Articles but no amount paid or credited
as paid on a share in advance of calls shall be treated for the purpose of
this Article as paid on the share.
104. The Directors may deduct from any dividend or distribution payable to any
Member all sums of money (if any) presently payable by him to the Company
on account of calls or otherwise.
105. The Directors may declare that any dividend or distribution be paid wholly
or partly by the distribution of specific assets and in particular of paid
up shares, debentures, or debenture stock of any other company or in any
one or more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and
in particular may issue fractional certificates and fix the value for
distribution of such specific assets or any part thereof and may determine
that cash payments shall be made to any Members upon the footing of the
value so fixed in order to adjust the rights of all Members and may vest
any such specific assets in trustees as may seem expedient to the
Directors.
106. Any dividend, distribution, interest or other monies payable in cash in
respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to
such person and to such address as such holder or joint holders may in
writing direct. Every such cheque or warrant shall be made payable to the
order of the person to whom it is sent. Any one 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.
107. No dividend or distribution shall bear interest against the Company.
CAPITALISATION
--------------
108. The Company may upon the recommendation of the Directors by ordinary
resolution authorise the Directors to capitalise any sum standing to the
credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the
credit of profit and loss account or otherwise
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available for distribution and to appropriate such sum to Members in the
proportions in which such sum would have been divisible amongst them had
the same been a distribution of profits by way of dividend and to apply
such sum on their behalf in paying up in full unissued shares for allotment
and distribution credited as fully paid up to and amongst them in the
proportion aforesaid. In such event the Directors shall do all acts and
things required to give effect to such capitalisation, with full power to
the Directors to make such provisions as they think fit for the case of
shares becoming distributable in fractions (including provisions whereby
the benefit of fractional entitlements accrue to the Company rather than to
the Members concerned). The Directors may authorise any person to enter on
behalf of all of the Members interested into an agreement with the Company
providing for such capitalisation and matters incidental thereto and any
agreement made under such authority shall be effective and binding on all
concerned.
BOOKS OF ACCOUNT
----------------
109. The Directors shall cause proper books of account to be kept with respect
to:
(a) all sums of money received and expended by the Company and the matters
in respect of which the receipt or expenditure takes place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such
books of account as are necessary to give a true and fair view of the state
of the Company's affairs and to explain its transactions.
110. The Directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the
inspection of Members not being Directors and no Member (not being a
Director) shall have any right of inspecting any account or book or
document of the Company except as conferred by Statute or authorised by the
Directors or by the Company in general meeting.
111. The Directors may from time to time cause to be prepared and to be laid
before the Company in general meeting profit and loss accounts, balance
sheets, group accounts (if any) and such other reports and accounts as may
be required by law.
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AUDIT
-----
112. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office until the next annual general
meeting and may fix his or their remuneration.
113. The Directors may before the first annual general meeting appoint an
Auditor or Auditors of the Company who shall hold office until the first
annual general meeting unless previously removed by an ordinary resolution
of the Members in general meeting in which case the Members at that meeting
may appoint Auditors. The Directors may fill any casual vacancy in the
office of Auditor but while any such vacancy continues the surviving or
continuing Auditor or Auditors, if any, may act. The remuneration of any
Auditor appointed by the Directors under this Article may be fixed by the
Directors.
114. Every Auditor of the Company shall have a right of access at all times to
the books and accounts and vouchers of the Company and shall be entitled to
require from the Directors and Officers of the Company such information and
explanation as may be necessary for the performance of the duties of the
auditors.
115. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon request
of the Directors or any general meeting of the Members, make a report on
the accounts of the Company in general meeting during their tenure of
office.
NOTICES
-------
116. Notices shall be in writing and may be given by the Company to any Member
either personally or by sending it by post, cable, telex or telecopy to him
or to his address as shown in the register of Members, such notice, if
mailed, to be forwarded airmail if the address be outside the Cayman
Islands.
117. (a) Where a notice is sent by post, service of the notice shall be deemed
to be effected by properly addressing, pre-paying and posting a letter
containing the notice, and to have been effected at the expiration of
sixty hours after the letter containing the same is posted as
aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service of the
notice shall be deemed to be effected by properly addressing, and
sending such notice through a transmitting organisation and to have
been effected on the day the same is sent as aforesaid.
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118. A notice may be given by the Company to the joint holders of record of a
share by giving the notice to the joint holder first named on the register
of Members in respect of the share.
119. A notice may be given by the Company to the person or persons which the
Company has been advised are entitled to a share or shares in consequence
of the death or bankruptcy of a Member by sending it through the post as
aforesaid in a pre-paid letter addressed to them by name, or by the title
of representatives of the deceased, or trustee of the bankrupt, or by any
like description at the address supplied for that purpose by the persons
claiming to be so entitled, or at the option of the Company by giving the
notice in any manner in which the same might have been given if the death
or bankruptcy had not occurred.
120. Notice of every general meeting shall be given in any manner hereinbefore
authorised to:
(a) every person shown as a Member in the register of Members as of the
record date for such meeting except that in the case of joint holders
the notice shall be sufficient if given to the joint holder first
named in the register of Members; and
(b) every person upon whom the ownership of a share devolves by reason of
his being a legal personal representative or a trustee in bankruptcy
of a Member of record where the Member of record but for his death or
bankruptcy would be entitled to receive notice of the meeting.
No other person shall be entitled to receive notices of general meetings.
WINDING UP
----------
121. If the Company shall be wound up the liquidator may, with the sanction of a
Special Resolution of the Company and any other sanction required by the
Statute, divide amongst the Members in specie or kind the whole or any part
of the assets of the Company (whether they shall consist of property of the
same kind or not) and may for such purpose set such value as he deems fair
upon any property to be divided as aforesaid and may determine how such
division shall be carried out as between the Members or different classes
of Members. The liquidator may with the like sanction, vest the whole or
any part of such assets in trustees upon such trusts for the benefit of the
contributories as the liquidator, with the like sanction, shall think fit,
but so that no Member shall be compelled to accept any shares or other
securities whereon there is any liability.
122. If the Company shall be wound up, and the assets available for distribution
amongst the Members as such shall be insufficient to repay the whole of the
paid-up capital, such assets shall be distributed so that, as nearly as may
be, the losses shall be borne by the Members in proportion to the capital
paid up, or which ought to have been paid up, at the commencement of the
winding up on the shares held by them respectively. And if in a
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winding up the assets available for distribution amongst the Members shall
be more than sufficient to repay the whole of the capital paid up at the
commencement of the winding up, the excess shall be distributed amongst the
Members in proportion to the capital paid up at the commencement of the
winding up on the shares held by them respectively. This Article is to be
without prejudice to the rights of the holders of shares issued upon
special terms and conditions.
INDEMNITY
---------
123. The Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the affairs of the
Company and their heirs, executors, administrators and personal
representatives respectively shall be, and any advisor may be, indemnified
out of the assets of the Company from and against all actions, proceedings,
costs, charges, losses, damages and expenses which they or any of them
shall or may incur or sustain by reason of any act done or omitted in or
about the execution of their duty in their respective offices or trusts,
except such (if any) as they shall incur or sustain by or through their own
wilful neglect or default respectively and no such Director, officer,
trustee or advisor shall be answerable for the acts, receipts, neglects or
defaults of any other Director, officer or trustee or for joining in any
receipt for the sake of conformity or for the solvency or honesty of any
banker or other persons with whom any monies or effects belonging to the
Company may be lodged or deposited for safe custody or for any
insufficiency of any security upon which any monies of the Company may be
invested or for any other loss or damage due to any such cause as aforesaid
or which may happen in or about the execution of his office or trust unless
the same shall happen through the wilful neglect or default of such
Director, officer, trustee or advisor.
FINANCIAL YEAR
--------------
124. Unless the Directors otherwise prescribe, the financial year of the Company
shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
----------------------
125. Subject to the Statute, the Company may at any time and from time to time
by Special Resolution alter or amend these Articles in whole or in part.
29
TRANSFER BY WAY OF CONTINUATION
-------------------------------
126. If the Company is exempted as defined in the Statute, it shall, subject to
the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and
to be deregistered in the Cayman Islands.