Exhibit 3.8
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COMPANIES LAW, CAP. 113
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COMPANY LIMITED BY SHARES
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ARTICLES OF ASSOCIATION
OF
TOPSCALE SHIPPING COMPANY LIMITED
1. The regulations contained in Part 1 of Table "A" in the First
Schedule of the Companies Law, Cap. 113 (which Table is
hereinafter called "Table A") shall apply to this Company,
save those which by these presents are excepted or amended or
which are inconsistent with the other provisions of these
Articles. The regulations of Part 1 of "Table A" Nos. 11, 24,
53, 58, 60, 77, 79, 88 (a), 89, 90, 91, 92, 98 and 113 shall
not apply, but save as above provided and in addition to the
other provisions of Part 1 of "Table A", the following shall
constitute the Articles of Association of this Company.
2. The Company is a private company and consequently:
(a) The right to transfer shares is restricted in manner
hereinafter prescribed,
(b) The number of members of the Company (exclusive of
persons who are in the employment of the Company and
of persons who having been formerly in the employment
of the Company were while in such employment and have
continued after the determination of such employment
to be members of the Company) is limited to fifty.
Provided that where two or more persons hold one or
more shares in the Company jointly they shall for the
purpose of this Article be treated as a single
member,
(c) Any invitation to the public to subscribe for any
shares or debentures of the Company is prohibited.
(d) The Company shall not have power to issue share
warrants to bearer.
3. Any branch or nature of business for which there is either an
express or an implied by the Memorandum of Association of the
Company or by these Articles authorization to be undertaken by
the Company may be undertaken by the Directors
at such time or times as they would deem fit and, furthermore,
may remain by the Directors in abeyance, irrespective of
whether such branch or nature of business has actually started
or not if the Directors would deem fit not to start or not to
continue with such branch or nature of business.
4. The Company shall have a first and paramount lien on every
share for all moneys (whether presently payable or not) called
or payable at a fixed time in respect of that share, and the
Company shall also have a first and paramount lien on all
shares standing registered in the name of a single person for
all moneys presently payable by him or his estate to the
Company; but the Directors may at any time declare any share
to be wholly or in part exempt from the provisions of this
Article. The Company's lien, if any, on a share shall extend
to all dividends payable thereon.
5. All additional shares approved to be issued shall be offered
to the members in proportion to the number of shares already
held by them and such offer shall be made by notice fixing the
number of shares which each member is entitled to be allotted
and restricting the time in which the offer if not accepted,
shall be deemed as having been declined and after which time
or on receipt of a declaration by the member to whom such a
notice is given that he declines to accept the shares offered,
the Directors may allot or otherwise dispose same to such
persons and under such conditions as they would deem fit.
6. The Directors may, independently of any other provision of the
Articles, but subject to Art. 7 hereinbelow in their absolute
discretion and without assigning any reason therefor, decline
to register the transfer of any share to any person of whom
they do not approve, whether or not it is a fully paid share,
and may also decline to register the transfer of any share on
which the Company has a legal lien.
7. Notwithstanding any other provision in these Articles, the
following transfers of shares to members of the Company or not
and either by sale, exchange, gift, transmission by law or
otherwise are freely permitted and the Directors shall
forthwith approve any such transfer and shall proceed to the
registration of same in the Register of Members of the
Company:
(a) Transfer to father, mother, spouse, child, grandson
or granddaughter of the transferor (in these Articles
called " members of the family ").
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10. If the Company shall, within the space of twenty-eight days
after being served with such notice of sale, find a member
willing to purchase any share included in the notice of sale
hereinafter called "the purchasing member" - and shall give
notice thereof to the retiring member, the retiring member
shall be bound, upon payment of the fair value, to transfer
the share to the purchasing member, who is bound to complete
the purchase within seven days from the service of the last
mentioned notice. The Directors, in order to find a purchasing
member shall offer any shares included in a notice of sale to
the persons who are the holders of the remaining shares in the
Company in as near a proportion to the shares in the Company
held by them and shall limit the time within which such offer
if not accepted will be deemed as declined, and the Directors
shall then make such arrangements as regards finding a
purchasing member for any shares declined by the member to
whom the shares were offered, within the so fixed time limit,
as the Directors would deem just and reasonable.
11. The fair value of a share is fixed by agreement between the
purchasing and the retiring member and any difference in
regard thereto shall be referred to arbitration of one
arbitrator, whose decision shall be final and, subject to
above, the Arbitration Law for the time being in force shall
apply and the auditors of the Company shall appear before such
arbitrator as expert witnesses. If for any reason the award of
the arbitrator is not made within fourteen days from the date
of the appointment of the arbitrator, the arbitration is
cancelled and the auditors of the Company shall fix finally
the fair value as experts and not as arbitrators.
12. If, in case the retiring member makes default in transferring
any share which he was bound to transfer as above, the
Directors may authorize another person to proceed with the
transfer of the shares to the purchasing member and may give
valid receipt for the purchase-money of such shares, register
the purchasing member as holder thereof and issue a
certificate in respect of same in his name and by virtue of
which the purchasing member shall become absolutely entitled
to same. The retiring member in such a case shall be bound to
return the certificate of the said shares and upon that shall
be entitled to collect the purchase-money, without interest,
and if such certificate contains any shares which he was not
bound to transfer as above, the Company shall issue to him a
certificate for the remaining shares.
Provided that, till the return of the above
certificate, same shall in any case, be deemed to be cancelled
with regard to any share already transferred to a purchasing
member, as above.
13. If the Directors shall not, within the space of twenty-eight
days after being served with a notice of sale, find a
participating member for all or any of the shares which are
included in such notice and shall not give notice in manner
aforesaid, or if through no fault of the retiring member the
purchase of any shares in respect of which such last mentioned
notice was given is not concluded within the space of
twenty-eight days from the service of such notice, the
retiring member at any time
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within the next six months shall be free, subject to Art. 6,
to sell and transfer the shares contained in the notice of
sale or such of them which were not sold to a pur chasing
member at any price and to any person.
14. Notwithstanding any other provisions of the Articles, no share
shall be given by a member as a pledge or as security for a
loan, debt or obligation without the sanction of the
Directors, and the Directors shall decline to register or
recognize any such pledge or security given in contravention
of this Article, which pledge or security shall not be valid
towards the Company, save as otherwise provided by law.
15. Each member shall not be entitled to appoint more than one
proxy to attend on the same occasion.
16. All notices and other communications relating to a General
Meeting and which each member is entitled to receive, shall
also be given to the auditors of the Company.
17. No business shall be transacted at any General Meeting unless
a quorum of members is present at the time when the Meeting
proceeds to business. Save as herein otherwise provided, two
members present in person or by proxy shall be a quorum.
18. 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:
(a) by the chairman, or
(b) by at least one member, present in person or by
proxy.
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 book containing the minutes
of the proceedings of the Company shall be conclusive evidence
of the fact without proof of the number or proportion of the
votes recorded in favour of or against such resolution. The
demand for a poll may be withdrawn.
19. The Chairman of a general meeting has no second or casting
vote.
20. (a) The number of the Directors shall be from one to
seven and may be increased or reduced by an ordinary
resolution of the Company.
(b) The number of the first Directors within the
aforesaid limits and their names shall be determined
by the subscribers to the Memorandum of Association
of the Company.
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(c) The aforesaid first Directors shall hold their post
until the first Annual General Meeting.
(d) At each Annual General Meeting all Directors shall
resign but shall be eligible for re-election.
21. It shall not be necessary for a Director to be registered
holder of shares in the Company in order to be a Director, and
in such case he shall be entitled to receive notice and attend
all the General Meetings of the Company.
22. The Directors may exercise all the powers of the Company, to
borrow or raise money, to mortgage or charge the undertaking
of the Company, its property and uncalled capital, as well as
to issue debentures, debenture stock and other securities as
security for any debt, loss or obligation of the Company or of
any other third party.
23. The Directors may meet together for the despatch of their
business, adjourn and otherwise regulate their meetings as
they deem fit. Questions arising at any meeting shall be
decided by a majority of votes. In case of an equality of
votes, the Chairman shall not have a second or casting vote. A
Director may and the Secretary, on the requisition of a
Director, shall, at any time, summon a meeting of the
Directors.
24. Each Director may vote as Director in respect of any contract
or arrangement in which he is personally interested or in
respect of any other matter referred to in section 191 of the
Companies Law and if he does so vote his vote shall be counted
and shall, also, be counted in the quorum present at the
meeting when considering such contract or arrangement.
25. Each Director may at any time and from time to time by a Power
of Attorney duly made and attested appoint any person,
Director or not to be an Alternate Director in his place and
for any period of time he may fix, and such Alternate Director
shall during such period be entitled to attend and vote in any
Meeting of the Director and he shall generally have and
exercise all rights, powers and duties of the Director
appointing him, provided always that the appointor Director
may at any time revoke such appointment and in case of death
or disability of the appointor Director or in case in which
the latter ceases for any reason to be a Director the
appointment shall be terminated ipso facto and shall be of no
effect.
If an Alternate Director is already a Director of the
Company, he shall have a separate vote as Alternate Director
and shall be counted separately for the purposes of
constituting a quorum.
26. Any person acting as Alternate Director shall be deemed to be
an officer of the Company and he shall be personally liable to
it for his acts and omissions and his remuneration shall be
paid out of the remuneration of the Director appointing him
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and shall consist of such part of such remuneration as it may
be agreed between the appointor Director and his Alternate.
27. (a) The Seal of the Company shall only be used by the
authority of the Directors and every instrument to
which the Seal shall be affixed shall be signed by
one Director or Alternate Director, or by the
Secretary.
(b) The Company may have an official seal, in addition to
the aforesaid common seal, which shall be as provided
by s.36 (1) of the Law and for use as therein
provided.
28. Subject to the provisions of the Law, a resolution in writing
signed by all the members for the time being entitled to
receive notice of and to attend and vote at General Meetings
-or being corporations by their duly authorized
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.
29. A resolution in writing, signed, or approved by letter, cable,
radiogram or telex by all the Directors, or the Alternate
Directors, shall be as valid and effective for all purposes as
if the same hid been passed at a meeting of the Directors duly
convened and held and whenever the same is signed may consist
of several papers each of which shall be signed by one or more
of the aforesaid persons.
30. The Directors may at any time require from any person, whose
name is registered in the register of members of the Company,
to furnish them with any information supported - if the
Directors so require - by a statutory Declaration, which they
may consider necessary for the purpose of enabling them to
determine whether or not the Company is an exempt private
Company within the meaning of para. 4 of section 123 of the
Law.
31. Notwithstanding any provision contained in the Articles
applicable to the Company, the meetings of the Directors, as
well as the General Meetings of the Company (ordinary or
extraordinary) may be convened and held either in Cyprus or
abroad, in any city or at any place as the majority of the
Directors or the members, as the case may be, may require in
writing.
32. Except as required by law, no person shall be recognized by
the Company as holding any share upon any trust and the
Company shall not be bound by, or be compelled in any way to
recognize (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 as
otherwise provided by these Articles or by law or by an order
of a Court of competent jurisdiction) any other rights in
respect of any share except an absolute right to the entirety
thereof in the registered holder.
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33. Notwithstanding any provision of Art. 32 above, but always
subject to the provisions of section 112 of the Law, the
Company may if it so desires and if it has been notified in
writing thereof, recognize the existence of a trust on any
share although it may not register the same in the Register of
Members of the Company. Such recognition by the Company is
made known to the trustees by letter and is irrevocable as
long as such trust remains in existence, even though trustees
or any of them may be replaced.
34. The Directors may grant retirement pensions or annuities or
other gratuities or allowances, including allowances on death,
to any person or to the widow of or dependants of any person
in respect of services rendered by him to the Company whether
as Director or Director in any executive office or in any
other officer or employment under the Company or indirectly as
an officer or employee of any subsidiary company of the
Company notwithstanding that he may be or may have been a
Director of the Company and the Company may make payments
towards insurances or trusts for such purpose in respect of
such persons and may include rights in respect of such
pensions, annuities and allowances in the terms of engagement
of any such person, without being precluded from granting such
retirement pensions or annuities or other gratuities or
allowances including allowances of death not as a part and
independently of the terms of any engagement but upon the
retirement, resignation or death of any such person as the
Board of Directors may decide.
35. A notice may be given by the Company to any member either
personally or by sending it by post to him or to his
registered address or (if he has no registered address within
Cyprus) to the address, if any, within or out of Cyprus,
supplied by him to the Company, for the giving of notice to
him. Where a notice is sent by post, service of the notice
shall be deemed to be effected if contained in an envelope,
duly addressed and duly stamped and posted by double
registered letter and shall be deemed to have been received in
the case of a notice of a meeting at the expiration of 72
hours after posting and in any other case at the time at which
the letter would be delivered in the ordinary course of post.
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COMPANIES LAW, CAP. 113
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COMPANY LIMITED BY SHARES
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MEMORANDUM OF ASSOCIATION
OF
TOPSCALE SHIPPING COMPANY LIMITED
1. The name of the Company is:
TOPSCALE SHIPPING COMPANY LIMITED
2. The registered office of the Company will be situated in Cyprus.
3. The objects for which tile Company is established are:
(1) To bareboat charter vessels of any kind and to register the
same at any ship registry in accordance with any relevant law
and to purchase, take in exchange, hire, manage, charter,
build, or otherwise acquire, hold or equip ships or vessels of
any kind with or without their equipment, machinery, furniture
and receptacles, or shares or interests in such ships or
vessels, as well as shares or other documents of companies
possessed of such ships or vessels, and to employ the same in
the conveyance of passengers, troops, goods and produce of all
kinds, including live stock, oil or other liquids, weapons and
munitions of war and generally any kind of articles, between
any ports or places, in Cyprus or elsewhere and to acquire any
postal subsidies, and to maintain, repair, improve, alter, let
out on hire, mortgage or otherwise deal with, sell or dispose
of any such ships or vessels, shares or documents.
(2) To carry on the business of shipowners, carriers by land and
sea, managers, dealers and agents of ships and shipping
companies, shipchandlers, warehousemen, contractors, owners of
barges, lighters, motor boats or other small vessels,
forwarding agents, agents of all kinds, stevedores,
shipbrokers, freight contractors, shipowners, wharfingers,
manufacturers and merchants of ice, owners and keepers of
refrigerating stores and spaces and to insure with any company
or person against any loss, damage, risk or liability of any
kind which may affect the Company, its property, its products
or the persons or articles transported by it and its transport
means as well as to carry on the business of insurance agents
for any type of insurance business, including maritime
insurance.
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(3) To borrow money for any purpose jointly and/or severally with
others, to give guarantees and securities of the liabilities
and obligations of others and generally, without limitation,
in any possible way and by any method or means, to grant
financial, commercial or other assistance, aid or support, of
any nature, to others; provided that for the purposes of this
paragraph the word "others" shall mean and include only any
one or more shipowning or shipmanagement or other companies,
which belong to the same group of companies as the Company, or
are controlled by the same shareholders as those of the
Company or own a vessel managed or operated by the same
managers or operators as a vessel of the Company.
(4) To participate in the management, supervision and control of
any business or work of any company or enterprise and for this
purpose to appoint and remunerate any Directors, Managers,
accountants, experts, agents or other representatives and to
amalgamate with any other company or enterprise which either
in part or as a whole has objects similar to those of the
Company.
(5) To acquire either in part or as a whole the property or the
obligations of any person or persons, legal or physical, and
of any description, so long as the Company deems them capable
of promoting its business and contribute to its success.
(6) To enter into contracts, agreements and arrangements with
other companies, person or persons, legal or physical and of
whatever description, on lawful consideration and to carry on
on their behalf any kind of business connected with the
objects of the Company.
(7) To enter into partnerships or any other arrangements for
participation in profits or interests, and into co-operation,
joint ventures, mutual concessions or otherwise with other
persons or person, legal or physical, or with other
enterprises carrying on or engaged in business or commercial
transactions capable of being directly or indirectly
beneficial to the Company.
(8) To invest and manage the capital and monies of the Company in
such shares or other investments, mortgages or pledges as it
would be deemed fit or in such a way as the Directors may from
time to time decide, as well as to subscribe for, take, buy or
otherwise acquire and possess shares or other interests in
other companies or debentures or other securities in same.
(9) To enter into any arrangements with any Government or
Authority, Municipal, local or otherwise, which might be
considered as conducive to the attainment of the objects of
the Company or of any of them, to obtain by such arrangement
concessions, rights or privileges, which, as a whole or each
one separately the Company would wish to obtain and use and to
comply with such arrangements, rights, privileges and
concessions.
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(10) To secure the registration or recognition of the Company in
any country or place and to comply with any necessary or
advantageous conditions for the purpose of ensuring the
functioning of the Company in such country or place and to
establish local representatives or offices therein for the
carrying on of its business.
(11) To appoint and engage employees, servants, workers, personnel,
agents or other persons in connection with the business of the
Company.
(12) To remunerate any person or firm rendering services to the
Company or working in the Company either by payment of money
or by the issue of shares as fully or partly paid up or by
granting a dividend or interest in the profits of the Company.
(13) To lend or advance money to such persons and under such
conditions as it would be deemed advisable and, especially, to
its members, to customers and persons dealing with the
Company.
(14) To provide indemnities or guarantees to third parties
including mortgaging and charging of the property of the
Company by way of security of a loan and/or guarantee to third
parties. The provision of such indemnity or guarantee
constitutes a self-evident and conclusive fact that the same
was made in the interests and/or for the promotion of the
objects of the Company.
(15) To borrow, seek and secure the payment of money in respect of
the business of the Company and for this purpose to mortgage
and burden the business and the whole or any part of its
immovable and movable property, present or future, in any way
the Company would deem fit, including the issue, at nominal
value or increased value or value below the nominal one, of
debentures or stock, perpetual or otherwise. charged upon all
or any of the property of the Company (both present or
future), including its uncalled capital and, further or
additionally, to secure any securities of the Company by trust
or other security and to purchase, redeem or otherwise pay off
any such securities.
(16) To draw, accept, indorse, discount and execute promissory
notes, bills of exchange and other instruments payable to
order or to the bearer.
(17) To purchase, take under lease or exchange, let or otherwise
acquire, use and possess or mortgage, sell, gift or otherwise
alienate any property or any interests, lands, buildings,
easements, rights privileges, concessions, machineries,
patents, installations, goods or any other movable or
immovable property of any kind.
(18) To erect, construct, commence construction, extend, convert
and maintain any buildings works and machinery necessary or
suitable for the objects of the Company.
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(19) To register, acquire, possess, use, sell or otherwise dispose
business names, trade and industrial marks, patents, invention
rights, copyrights and other similar rights and privileges.
(20) To advertise either by itself or through special, governmental
or private bodies, the businesses of the Company or any of
them, in any way the Company would deem fit, including the
advertisement through the press or radio, through placards,
films, circu lars, exhibitions, publication of books or
magazines, competitions, prize awards or rewards and through
any other lawful means.
(21) To sell or otherwise dispose of part or the whole of the
business or the property of the Company for such consideration
as the Company would deem fit.
(22) To distribute in specie amongst the members of the Company
part or the whole of the property or the business of the
Company and at any time, as well as in case of its
dissolution.
(23) To establish and maintain or procure the establishment and
maintenance of any contributory or non contributory pension
provident 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 of any
company which is a subsidiary of the Company or is allied to
or associated with the Company or any subsidiary company, or
who are or were at any time Directors or officers of the
Company or of any such other company as aforesaid, and the
wives, widows, husbands, widowers, families and dependants of
any such persons, and also to establish and subsidize and
subscribe to any institutions, associations, clubs or funds
which to the Company may seem to be for the benefit of or to
advance the interest and well-being of the Company or of any
such other company as aforesaid or of any such persons as
aforesaid and make payments to or towards the insurance of any
such person as aforesaid, and do any of the matters aforesaid
either alone or in conjunction with any such other company as
aforesaid.
(24) To participate in or otherwise aid any charitable or
philanthropic body or purpose or other purpose of public
benefit.
(25) To pay all expenses related to the formation and registration
of the Company.
(26) To do all or any of the above acts either alone or in
conjunction with others and in various legal capacities, such
as principal, mandatory, agent contractor, trustee or in any
other capacity envisaged by the Law, as well as generally and
for every purpose or object to act in any capacity as above.
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(27) To do any act which is conducive to or necessary for the
achievement of the above or of any of the above objects
severally.
It is hereby expressly declared that each sub-clause of clause
3 above shall be construed independently of any other
sub-clause thereof and that none of the objects mentioned in
any of the above sub-clauses shall be deemed to be merely
subsidiary to the objects mentioned in any of the other above
sub-clauses.
4. The liability of the members is limited.
5. The share capital of the Company is (pound)1000 - - divided into 1000
shares of (pound)1000 each. The shares in the original or any increased
capital may be divided into several classes, and there may be attached
thereto respectively any preferential rights, privileges, conditions or
restrictions or especially as regards dividends, capital, voting rights
or otherwise.