EXHIBIT 3.2
1
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ORDINANCE
(NO. 8 OF 1984 AS AMENDED)
ARTICLES OF ASSOCIATION
OF
AMETHYST FINANCIAL COMPANY LTD.
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following table
shall bear the meanings set opposite them respectively in the second
column thereof.
WORDS MEANINGS
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capital The sum of the aggregate par value of
all outstanding shares with par value
of the Company and shares with par
value held by the Company as treasury
shares plus
(a) the aggregate of the amounts
designated as capital of all
outstanding shares without par value
of the Company and shares
without par value held by the
Company as treasury shares, and
(b) the amounts as are from time to
time transferred from surplus to
capital by a resolution of directors.
member A person who holds shares in the
Company.
person An individual, a corporation, a
trust, the estate of a deceased
individual, a partnership or an
unincorporated association of
persons.
resolution of directors (a) A resolution approved at a duly
constituted meeting of directors or
of a committee or directors of the
Company by the affirmative vote
of a simple majority of the
directors present who voted and
did not abstain where the
meeting was called on proper
notice or, if on short notice,
if those directors not present
have waived notice; or
(b) a resolution consented to in
writing by all directors or by all
members of the committee, as the case
may be.
resolution of members (a) a resolution approved at a duly
constituted meeting of the members of
the Company by the affirmative
vote of:
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(i) a simple majority of the
votes of the shares which were
present at the meeting and were
voted and not abstained, or
(ii) a simple majority of the
votes of each class or
series of shares which
were present at the
meeting and entitled to
vote thereon as a class or
series and were voted and
not abstained and of a
simple majority of the
votes of the remaining
shares entitled to vote
thereon which were present
at the meeting and were
voted and not abstained;
or
(b) a resolution consented to in writing by
(i) an absolute majority of
the votes of shares entitled to vote
thereon, or
(ii) an absolute majority of
the votes of each class or
series of shares entitled
to vote thereon as a class
or series and of an
absolute majority of the
votes of the remaining
shares entitled to vote
thereon.
securities Shares and debt obligations of every
kind, and options, warrants and
rights to acquire shares, or debt
obligations.
surplus The excess, if any, at the time of
the determination of the total assets
of the Company over the aggregate of
its total liabilities, as shown in
its books of account, plus the
Company's capital.
the Memorandum The Memorandum of Association of the
Company as originally framed or as
from time to time amended.
the Ordinance The International Business Companies
Ordinance (No. 8 of 1984 as amended).
the Seal The Common Seal of the Company.
these Articles The Articles of Association as
originally framed or as from time to
time amended.
regulation The reference to any individual
paragraph within these Articles or as
from time to time amended.
treasury shares Shares in the Company that were
previously issued but were
repurchased, redeemed or otherwise
acquired by the Company and not
canceled.
"Written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented or
reproduced by any mode of representing or reproducing words in a visible
form, including telex, telegram, cable or other form of writing produced
by electronic communication.
Save as foresaid any words or expressions defined in the Ordinance shall
bear the same meaning in these Articles.
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Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and
not the number of members who actually voted and a reference to shares
being present at a meeting shall be given a corresponding construction.
A reference to money in these Articles is a reference to the currency of
the United States of America unless otherwise stated.
REGISTERED SHARES
2. The Company shall issue to every member holding registered shares in the
Company a certificate signed by at least a director and an officer of the
Company or if under Seal signed by either a director or an officer
specifying the share or shares held. The signature of the director or
officer and the Seal may be facsimiles.
3. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless
from any loss or liability which it or they may incur by reason of
wrongful or fraudulent use or representation made by any person by virtue
of the possession thereof. If a share certificate for registered shares is
worn out or lost it may be renewed on production of the worn out
certificate or on satisfactory proof of its loss together with such
indemnity as may be required by a resolution of directors.
4. If several persons are registered as joint holders of any shares, any one
of such persons may give an effectual receipt for any dividend payable in
respect of such shares.
BEARER SHARES
5. Subject to a request for the issue of bearer shares and to the payment of
the appropriate consideration for the shares to be issued, the Company
may, to the extent authorised by the Memorandum, issue bearer shares to,
and at the expense of, such person as shall be specified in the request.
The Company may also upon receiving a request in writing accompanied by
the share certificate for the shares in question, exchange registered
shares for bearer shares or may exchange bearer shares for registered
shares. Such request served on the Company by the holder of bearer shares
shall specify the name and address of the person to be registered and
unless the request is delivered in person by the bearer shall be
authenticated as hereinafter provided. Such request served on the Company
by the holder of bearer shares shall also be accompanied by any coupons or
talons which at the date of such delivery have not become due for payment
of dividends or any other distribution by the Company to the holders of
such shares. Following such exchange the share certificate relating to the
exchanged shares shall be delivered as directed by the member requesting
the exchange.
6. Bearer share certificates shall be signed by at least a director and an
officer of the Company or if under Seal signed by either a director or an
officer and shall state that the bearer is the owner of the shares therein
specified and may provide by coupons, talons or otherwise for the payment
of dividends or other moneys on the shares included therein.
7. Subject to the provisions of the Ordinance and of these Articles the
bearer of a bearer share certificate shall be deemed to be a member of the
Company and shall be entitled to the same rights and privileges as he
would have had if his name had been included in the share register of the
Company as the holder of the shares.
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8. Subject to any specific provisions in these Articles, in order to exercise
his rights as a member of the Company, the bearer of a bearer share
certificate shall produce the bearer share certificate as evidence of his
membership in the Company. Without prejudice to the generality of the
foregoing, the following rights may be exercised in the following manner:
(a) for the purpose of exercising his voting rights at a meeting, the
bearer of a bearer share certificate shall produce such certificate
to the chairman of the meeting;
(b) for the purpose of exercising his vote on a resolution in writing,
the bearer of a bearer share certificate shall cause his signature to
any such resolution to be authenticated as hereinafter set forth;
(c) for the purpose of requisitioning a meeting of members, the bearer of
a bearer share certificate shall address his requisition to the
directors and his signature thereon shall be duly authenticated as
hereinafter provided; and
(d) for the purpose of receiving dividends, the bearer of the bearer
share certificate shall present at such places as may be designated
by the directors any coupons or talons issued for such purpose, or
shall present the bearer share certificate to any paying agent
authorised to pay dividends.
9. The signature of the bearer of a bearer share certificate shall be deemed
to be duly authenticated if the bearer of the bearer share certificate
shall produce such certificate to a notary public or a bank manager or a
director or officer of the Company (herein referred to as an "authorised
person") and if the authorised person shall endorse the document bearing
such signature with a statement:
(a) identifying the bearer share certificate produced to him by number
and date and specifying the number of shares and the class of shares
(if appropriate) comprised therein;
(b) confirming that the signature of the bearer share certificate was
subscribed in his presence and that if the bearer is representing a
body corporate he has so acknowledged and has produced satisfactory
evidence of authority thereof as provided in Regulation 12; and
(c) specifying the capacity in which he is qualified as an authorised
person and, if a notary public, affixing his seal thereto or, if a
bank manager, attaching an identifying stamp of the bank of which is
is a manager.
10. Notwithstanding any other provisions of these Articles, at any time, the
bearer of a bearer share certificate may deliver the certificate for such
shares into the custody of the Company at its registered office, whereupon
the Company shall issue a receipt therefor under the Seal signed by a
director or officer identifying by name and address the person delivering
such certificate and specifying the date and number of the bearer share
certificate so deposited and the number of shares comprised therein. Any
such receipt may be used by the person named therein for the purpose of
exercising the rights vested in the shares represented by the bearer share
certificate so deposited including the right to appoint a proxy. Any
bearer share certificate so deposited shall be returned to the person
named in the receipt upon request by the person mentioned in the receipt
or to his personal representative if such person be dead and thereupon the
receipt issued therefor shall be of no further effect whatsoever and shall
be returned to the Company for cancellation or, if it has been lost or
mislaid such indemnity as may be required by resolution of directors shall
be given to the Company.
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11. The bearer of a bearer share certificate shall for all purposes be deemed
to be the owner of the shares comprised in such certificate and in no
circumstances shall the Company or the Chairman of any meeting of members
or the Company's registrars or any director or officer of the Company or
any authorised person be obliged to inquire into the circumstances whereby
a bearer share certificate came into the hands of the bearer thereof, or
to question the validity or authenticity of any action taken by the bearer
of a bearer share certificate whose signature has been authenticated as
provided herein.
12. If the bearer of a bearer share certificate shall be a corporation, then
all the rights exercisable by virtue of such shareholding may be exercised
by an individual duly authorised to represent the corporation but unless
such individual shall acknowledge that he is representing a corporation
and shall produce upon request satisfactory evidence that he is duly
authorised to represent the corporation, the individual shall for all
purposes hereof be regarded as the holder of the shares in any bearer
share certificate held by him.
13. The directors may provide for payment of dividends to the holders of
bearer shares by coupons or talons and in such event the coupons or talons
shall be in such form and payable at such time and in such place or places
as the directors shall resolve. The Company shall be entitled to recognise
the absolute right of the bearer of any coupon or talon issued as
aforesaid to payment of the dividend to which it relates and delivery of
the coupon or talon to the Company or its agents shall constitute in all
respects a good discharge of the Company in respect of such dividend.
14. If any bearer share certificate, coupon or talon be worn out or defaced,
the directors may, upon the surrender thereof for cancellation, issue a
new one in its stead, and if any bearer share certificate, coupon or talon
be lost or destroyed, the directors may upon the loss or destruction being
established to their satisfaction, and upon such indemnity being given to
the Company as it shall by resolution of directors determine, issue a new
bearer share certificate in its stead, and in either case on payment of
such sum as the Company may from time to time by resolution of directors
require. In case of loss or destruction the person to whom such new bearer
share certificate, coupon or talon is issued shall also bear and pay to
the Company all expenses incidental to the investigation by the Company of
the evidence of such loss or destruction and to such indemnity.
SHARES, AUTHORISED CAPITAL AND CAPITAL
15. Subject to the provisions of these Articles and any resolution of members
the unissued shares of the Company shall be at the disposal of the
directors who may without prejudice and without limiting or affecting any
rights previously conferred on the holders of any existing shares or class
or series of shares, offer, allot, grant options over or otherwise dispose
of shares to such persons, at such times and upon such terms and
conditions as the Company may by resolution of directors determine.
16. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or other
binding obligation to contribute money or property or any combination of
the foregoing as shall be determined by a resolution of directors.
However, shares for which payment is not made pursuant to a promissory
note or other written binding obligation for payment of a debt may upon
resolution of directors, be forfeited and canceled. Prior to such
forfeiture, the Company must give written notice to the member who
defaults in making payment pursuant to a promissory note or other written
binding obligation to pay a debt. Such notice shall name a further date
not earlier than the expiration of 14 days from the date of service of the
notice on or before which the payment required by the notice is to be made
and shall contain a statement that in the event of non-payment at or
before the time named in the notice the shares, or any of them, in respect
of
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which payment is not made will be liable to be forfeited. Where a notice
has been issued and the requirements of the notice have been complied
with, the directors may, at any time before tender of payment, by
resolution of directors forfeit and cancel the shares to which the notice
relates. The Company is under no obligation to refund any moneys to the
member whose shares have been canceled under this situation and that
member shall be discharged from any further obligation to the Company.
17. Shares in the Company may be issued for such amount of consideration as
the directors may from time to time by resolution of directors determine,
except that in the case of shares with par value, the amount shall not be
less than the par value, and in the absence of fraud the decision of the
directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved.
The consideration in respect of the shares constitutes capital to the
extend of the par value and the excess constitutes surplus.
18. A share issued by the Company upon conversion of, or in exchange for,
another share or debt obligation or other security in the Company, shall
be treated for all purposes as having been issued for money equal to the
consideration received or deemed to have been received by the Company in
respect of the other share, debt obligation or security.
19. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the Company
may by resolution of directors determine.
20. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
21. Upon the issue by the Company of a share without par value, the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except
that the directors must designate as capital an amount of the
consideration that is at least equal to the amount that the share is
entitled to as a preference, if any, in the assets of the Company upon
liquidation of the Company.
22. The Company may purchase, redeem or otherwise acquire and hold its own
shares but no purchase, redemption or other acquisition which shall
constitute a reduction in capital shall be made otherwise than in
compliance with Regulations 36 and 37.
23. Shares that the Company purchases, redeems or otherwise acquires pursuant
to Regulation 22 may be canceled or held as treasury shares unless the
shares are purchased, redeemed or otherwise acquired out of capital and
would otherwise infringe upon the requirements of Regulations 36 and 37,
or to the extent that such shares are in excess of 80 percent of the
issued shares of the Company, in which case they shall be canceled but
they shall be available for reissue. Upon the cancellation of a share, the
amount included as capital of the Company with respect to that share shall
be deducted from the capital of the Company.
24. Where shares in the Company are held by the Company as treasury shares or
are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the
election of directors of the other company, such shares of the company are
not entitled to vote or to have dividends paid thereon and shall not be
treated as outstanding for any purpose except for purposes of determining
the capital of the Company.
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25. Notice of a trust, expressed, implied or constructive, may be entered in
the share register.
TRANSFER OF SHARES
26. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed by
the transferor and containing the name and address of the transferee, but
in the absence of such written instrument of transfer the directors may
accept such evidence of a transfer of shares as they consider appropriate.
27. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
28. Subject to any limitations in the the Memorandum, the Company must on the
application of the transferor or transferee of a registered share in the
Company enter in the share register the name of the transferee of the
share save that the registration of transfers may be suspended and the
share register closed at such times and for such periods as the Company
may from time to time by resolution of directors determine provided always
that such registration shall not be suspended and the share register
closed for more than 60 days in any period of 12 months.
TRANSMISSION OF SHARES
29. The executor or administration of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognized by the Company as having any title to his share but they
shall not be entitled to exercise any rights as a member of the Company
until they have proceeded as set forth in the next two regulations.
30. Any person becoming entitled by operation of law or otherwise to a share
or shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced as
may reasonably be required by the directors. An application by any such
person to be registered as a member shall for all purposes be deemed to be
a transfer of shares of the deceased, incompetent or bankrupt member and
the directors shall treat it as such.
31. Any person who has become entitled to a share or shares in the consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person be named by
him be registered as the transferee of such share or shares and such
request shall likewise be treated as if it were a transfer.
32. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and the
circumstances of the case.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
33. The Company may by a resolution of members or by resolution of directors
amend the Memorandum to increase or reduce its authorised capital and in
connection therewith the Company may in respect of any unissued shares
increase or reduce the number of such shares, increase or reduce the par
value of any such shares or effect any combination of the foregoing.
34. The Company may amend the Memorandum to
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(a) divide the shares, including issued shares, of a class or series into
a large number of shares of the same class or series; or
(b) combine the shares, including issued shares, of a class or series
into a smaller number of shares of the same class or series;
provided, however, that where shares are divided or combined under (a) or
(b) of this Regulation, the aggregate par value of the new shares must be
equal to the aggregate par value of the original shares.
35. The capital of the Company may by a resolution of members or by resolution
of directors be increased by transferring an amount of the surplus of the
Company to capital, and, subject to the provisions of Regulations 36 and
37, the capital of the Company may be reduced by transferring an amount of
the capital of the Company to surplus.
36. No reduction of capital shall be effected that reduces the capital of the
Company to an amount that immediately after the reduction is less than the
aggregate par value of all outstanding shares with par value and all
shares with par value held by the Company as treasury shares and the
aggregate of the amounts designated as capital of all outstanding shares
without par value and all shares without par value held by the Company as
treasury shares that are entitled to a preference, if any, in assets of
the Company upon liquidation of the Company.
37. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its business
and that the realizable assets of the Company will not be less than its
total liabilities, other than deferred taxes, as shown in the books of the
Company and its remaining capital, and, in the absence of fraud, the
decision of the directors as to the realizable value of the assets of the
Company is conclusive, unless a question of law is involved.
38. Where the Company reduces its capital the Company may
(a) return to its members any amount received by the Company upon the
issue of any of its shares;
(b) purchase, redeem or otherwise acquire its shares out of capital; or
(c) cancel any capital that is lost or not represented by assets having a
realizable value.
MEETINGS AND CONSENTS OF MEMBERS
39. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and place within or outside the
British Virgin Islands as the directors consider necessary or desirable.
40. Upon the written request of members holding 10 percent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
41. The directors shall give not less than 7 days notice of meetings of
members to those persons whose names on the date the notice is given
appear as members in the share register of the Company.
42. A meeting of members held in contravention of the requirement in
Regulation 41 is valid
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(a) if members holding not less than 90 percent of the total number of
shares entitled to vote on all matters to be considered at the
meeting, or 90 percent of the votes of each class or series of shares
where members are entitled to vote thereon as a class or series
together with not less than a 90 percent majority of the remaining
votes, have agreed to shorter notice of the meeting; or
(b) if all members holding shares entitled to vote on all or any
matters to be considered at the meeting have waived notice of
the meeting and for this purpose presence at the meeting shall
be deemed to constitute waiver.
43. The inadvertent failure of the directors to give notice of a meeting to a
member, or the fact that a member has not received notice, does not
invalidate the meeting.
44. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
45. The instrument appointing a proxy shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the
person named in such instrument proposes to vote.
46. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the
above Company with shares HEREBY APPOINT
of or failing him
of to be my/our proxy to vote for me/us at the
meeting of
members to be held on the day of
and at any adjournment thereof.
(Any restrictions on voting to be inserted here).
Signed this day of
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Member
47. The following shall apply in respect of joint ownership of shares:
(a) if two or more persons hold shares jointly each of them may be
present in person or by proxy at a meeting of members and may speak
as a member;
(b) if only one of the joint owners is present in person or by proxy
he may vote on behalf of all joint owners; and
(c) if two or more of the joint owners are present in person or
by proxy they must vote as one.
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48. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
49. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50 percent
of the votes of the shares of class or series of shares entitled to vote
on resolutions of members considered at the meeting. If a quorum be
present, notwithstanding the fact that such quorum may be represented by
only one person, then such person may resolve any matter and a certificate
signed by such person accompanied by a copy of the proxy form where such
person be a proxy, shall constitute a valid resolution of members.
50. If within two hours from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of members,
shall be dissolved; in any other case it shall stand adjourned to the next
business day at the same time and place or to such other time and place as
the directors may determine, and if at the adjourned meeting there are
present within one hour from the time appointed for the meeting in person
or by proxy not less than one third of the votes of the shares of each
class or series of shares entitled to vote on the resolution to be
considered by the meeting, those present shall constitute a quorum but
otherwise the meeting shall be dissolved.
51. At every meeting of members, the Chairman of the Board of Directors shall
preside as chairman of the meeting. If there is no Chairman of the Board
of Directors or if the Chairman of the Board of Directors is not present
at the meeting, the members present shall choose some one of their number
to be the chairman. If the members are unable to choose a chairman for any
reason, then the person representing the greatest number of voting shares
present in person or by prescribed form of proxy at the meeting shall
preside as chairman failing which the oldest individual member or
representative of a member present shall take the chair.
52. The chairman may, with the consent of the meeting, adjourn any meeting
from time to time, and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place.
53. At the meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any member
present in person or by proxy who disputes the announcement by the
chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the chairman shall thereupon
cause a poll to be taken. If a poll is taken at any meeting, the results
thereof shall be duly recorded in the minutes of that meeting by the
chairman.
54. Any person other than an individual shall be regarded as one member and
subject to Regulation 55 the right of any individual to speak for or
represent such member shall be determined by the law of the jurisdiction
where, and by the documents by which, the person is constituted or derives
its existence. In case of doubt, the directors may in good faith, seek
legal advice from any qualified person and unless and until a court of
competent jurisdiction shall otherwise rule, the directors may rely and
act upon such advice without any liability to any member.
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55. Any person other than an individual which is a member of the Company may
by resolution of its directors or other governing body authorise such
person as it thinks fit to act as its representative at any meeting of the
Company or of any class of members of the Company, and the person so
authorised shall be entitled to exercise the same powers on behalf of the
person which he represents as that person could exercise if it were an
individual member of the Company.
56. The chairman of any meeting at which a vote is cast by proxy or on behalf
of any person other than an individual may call for a notarially certified
copy of such proxy or authority which shall be produced within 7 days of
being so requested or the votes cast by such proxy or on behalf of such
person shall be disregarded.
57. Directors of the Company may attend and speak at any meeting of members of
the Company and at any separate meeting of the holders of any class or
series of shares in the Company
DIRECTORS
58. The first director or directors of the Company shall be elected by the
subscriber(s) to the Memorandum and these Articles; and, save as provided
in Regulation 63 hereof, thereafter, the directors shall be elected by the
members for such term as the members determine.
59. The minimum number of directors shall be one and the maximum number shall
be 10.
60. Each director shall hold office for the term, if any, fixed by resolution
of members or until his earlier death, resignation or removal.
61. A director may be removed from office, with or without cause, only by a
resolution of members.
62. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from the
date the notice is received by the Company or from such later date as may
be specified in the notice.
63. A vacancy in the Board of Directors may be filled by a resolution of
members or by a resolution of a majority of the remaining directors. In
addition, the directors, by resolution, may appoint new directors, resign
and specify that their resignations will become effective following the
appointment of their replacements.
64. With prior or subsequent approval by a resolution of members, the
directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
65. A director shall not require a share qualification, and may be an
individual or a company.
POWER OF DIRECTORS
66. The business and affairs of the Company shall be managed by the directors
who may pay all expenses incurred preliminary to and in connection with
the formation and registration of the Company and may exercise all such
powers of the Company as are not by the Ordinance or by the Memorandum or
these Articles required to be exercised by the members of the Company,
subject to any delegation of such powers as may be authorised by these
Articles and to such requirements as may be prescribed by a resolution of
members; but no requirement made by a resolution of members shall prevail
if it be
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inconsistent with these Articles nor shall such requirements invalidate
any prior act of the directors which would have been valid if such
requirement had not been made.
67. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company.
68. Every officer or agent of the Company has such powers and authority of the
directors, including the power and authority to affix the Seal, as are set
forth in these Articles or in the resolution of directors appointing the
officer or agent, except that no officer or agent has any power or
authority with respect to fixing the emoluments of directors.
69. Any director which is a body corporate may appoint any person its duly
authorised representative for the purpose of representing it at meetings
of the Board of Directors or with respect to unanimous written consents or
with respect to any other actions of directors in accordance with these
Articles.
70. The continuing directors may act notwithstanding any vacancy in their
body, save that if their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum for a meeting of
directors, the continuing directors or director may act only for the
purpose of appointing directors to fill any vacancy that has arisen or
summoning a meeting of members.
71. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for moneys paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed, as the
case may be, in such manner as shall from time to time be determined by
resolution of directors.
PROCEEDINGS OF DIRECTORS
72. The directors of the Company or any committee thereof may meet at such
times and in such manner and places within or outside the British Virgin
Islands as the directors may determine to be necessary or desirable.
73. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
74. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors entitled
to vote at the meeting who do not attend waive notice of the meeting; and
for this purpose the presence of a director at the meeting shall be deemed
to constitute waiver on his part. The inadvertent failure to give notice
of a meeting to a director, or the fact that a director has not received
the notice, does not invalidate the meeting.
75. A director may be written instrument appoint an alternate who need not be
a director and an alternate is entitled to attend meetings in the absence
of the director who appointed him and to vote or consent in place of the
director.
76. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate
not less than one half of the total number of directors then in office,
unless there are only 2 directors in which case the quorum shall be 2.
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77. If the Company shall have only one director the provisions herein
contained for meetings of the directors shall not apply but such sole
director shall have full power to represent and act for the Company in all
matters as are not by the Ordinance or the Memorandum or these Articles
required to be exercised by the members of the Company and in lieu of
minutes of a meeting such sole director shall record in writing and sign a
note or memorandum of all matters requiring a resolution of directors.
Such a note of memorandum shall constitute sufficient evidence of such
resolution for all purposes.
78. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Vice Chairman of the Board of Directors shall
preside. If there is no Vice Chairman of the Board of Directors or if the
Vice Chairman of the Board of Directors is not present at the meeting the
directors present shall choose some one of their number to be chairman of
the meeting.
79. The directors shall cause the following corporate records to be kept:
(a) minutes of all meetings of directors, members, committees of
directors, committees of officers and committees of members;
(b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees
of members; and
(c) such other accounts and records as the directors by
resolution of directors consider necessary or desirable in
order to reflect the financial position of the Company.
80. The books, records and minutes shall be kept at the registered office of
the Company or at such other place as the directors determine.
81. The directors may, by a resolution of directors, designate one or more
committees, each consisting of one or more directors.
82. Each committee of directors has such powers and authorities of the
directors, subject to prior consent of the shareholders, including the
powers and authority to affix the seal. No committee has any power or
authority to either amend the Memorandum or these Articles or to act in
respect to matters requiring a resolution of directors under Regulation
63, 64 and 67.
83. The meetings and proceedings of each committee of directors consisting of
2 or more directors shall be governed mutatis mutandis by the provisions
of these Articles regulating the proceedings of directors so far as the
same are not superseded by any provisions in the resolution establishing
the committee.
OFFICERS
84. The Company may by resolution of directors appoint officers of the Company
at such times as shall be considered necessary or expedient. Such
officers, who need not be directors or members of the Company, may consist
of the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, a President and one or more Vice Presidents, Secretaries and
Treasurers and such other officers as may from time to time be deemed
desirable. Any number of offices may be held by the same person.
85. The officers shall perform such duties as shall be prescribed at the time
of their appointment subject to any modification in such duties as may be
prescribed thereafter by resolution of
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directors or resolution of members, but in the absence of any specific
allocation of duties it shall be the responsibility of the Chairman of the
Board of Directors to preside at meetings of directors and members, the
Vice Chairman to act in the absence of the Chairman, the President to
manage the day to day affairs of the Company, the Vice Presidents to act
in order of seniority in the absence of the President but otherwise to
perform such duties as may be delegated to them by the President, the
Secretaries to maintain the share register, minute books and records
(other than financial records) of the Company and to ensure compliance
with all procedural requirements imposed on the Company by applicable law,
and the Treasurer to be responsible for the financial affairs of the
Company.
86. The emoluments of all officers shall be fixed by resolution of directors.
87. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by resolution
of directors. Any vacancy occurring in any office of the Company may be
filled by resolution of directors.
CONFLICT OF INTERESTS
88. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest or
to whom any director is related, including as a director of that other
person, is void or voidable for this reason only or by reason only that
the director is present at the meeting of directors or at the meeting of
the committee of directors that approves the agreement or transaction or
that the vote or consent of the director is counted for that purpose if
the material facts of the interest of each director in the agreement or
transaction and his interest in or relationship to any other party to the
agreement or transaction are disclosed in good faith or are known by the
other directors. Such agreement or transaction is valid even if at the
time the agreement or transaction was authorized, approved or ratified by
resolution of directors or by resolution of members the agreement or
transaction was unfairly prejudicial to one or more members of the company
or the creditors of the company except that no person who voted in favor
of the resolution authorizing, approving or ratifying the agreement or
transaction shall be capable subsequently of impugning or objecting to the
agreement or transaction.
89. A director who has an interest in any particular business to be considered
at a meeting of directors or members may be counted for purposes of
determining whether the meeting is duly constituted.
INDEMNIFICATION
90. Subject to Regulation 91 the Company shall indemnify against all expenses,
including legal fees, and against all judgements, fines and amounts paid
in settlement and reasonably incurred in connection with legal,
administrative or investigative proceedings any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the fact that
the person is or was a director, an officer or a liquidator of the
Company; or
(b) is or was, at the request of the Company, serving as a director,
officer or liquidator of or in any capacity is or was acting
for, another company or a partnership, joint venture, trust or
other enterprise.
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91. Regulation 90 only applies to a person referred to in that Regulation if
the person acted honestly and in good faith with a view to the best
interests of the Company and, in the case of criminal proceedings, the
person had no reasonable cause to believe that his conduct was unlawful.
92. The decision of the directors as to whether the person acted honestly and
in good faith and with a view to the best interests of the Company and as
to whether the person had no reasonable cause to believe that his conduct
was unlawful, is, in the absence of fraud, sufficient for the purpose of
these Articles, unless a question of law is involved.
93. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself, create
a presumption that the person did not act honestly and in good faith and
with a view to the best interests of the Company or that the person had
reasonable cause to believe that his conduct was unlawful.
94. If a person referred to in Regulation 90 has been successful in defence of
any proceedings referred to in that Regulation the person is entitled to
be indemnified against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred by
the person in connection with the proceedings.
95. The Company may purchase and maintain insurance in relation to any person
who is or was a director, an officer or a liquidator of the Company, or
who at the request of the Company is or was serving as a director, an
officer or a liquidator of, or in any other capacity is or was acting for,
another company or a partnership, joint venture, trust or another
enterprise, against any liability asserted against the person and incurred
by the person in that capacity, whether or not the Company has or would
have had the power to indemnify the person against the liability under
Regulation 90.
PERSONAL LIABILITY
96. No member, director, officer, agent or liquidator of the Company is liable
for any debt, obligation or default of the Company in the execution of the
duties of his office or otherwise in relation thereto except in so far as
he may be liable for his own conduct or acts. If, however, at any time
there is no member of the Company, any person doing business in the name
or on behalf of the Company is personally liable for the payment of all
debts of the Company contracted during that time and the person may be
sued therefor without joinder in the proceedings of any other person.
SEAL
97. The directors shall provide for the safe custody of the Seal. The Seal
when affixed to any written instrument shall be witnessed by a director or
any other person so authorised from time to time by resolution of
directors. The directors may provide for a facsimile of the Seal and of
the signature of any director or authorised person which may be reproduced
by printing or other means on any instrument and it shall have the same
force and validity as if the Seal had been affixed to such instrument and
the same had been signed and hereinbefore described.
AUTHENTICATION OF DOCUMENTS
98. Subject to the provisions of the Ordinance and these Articles the company
is bound by any document signed on its behalf in accordance with the
resolution of directors or the resolution of members, as the case may be,
authorizing the execution of such document or in accordance with any
general or special powers of attorney granted by the company, and
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need not be under its common seal. If any authentication or attestation is
required, the signature of the person(s) executing the document may be
certified by the Registered Agent of the Company, any notary public, any
official department or consulate of any country, any major bank or other
financial institution, or as otherwise requested.
DIVIDENDS
99. The Company may by a resolution of directors declare and pay dividends in
money, shares, or other property but dividends shall only be declared and
paid out of surplus. In the event that dividends are paid in specie the
directors shall have the responsibility for establishing and recording in
the resolution of directors authorising the dividends a fair and proper
value for the assets to be distributed. The directors may from time to
time pay to the members such interim dividends as appear to the directors
to be justified by the profits of the Company. The directors may, before
declaring any dividend, set aside out of the profits of the Company such
sum as they think proper as a reserve fund, and may invest the sum so set
apart as a reserve fund upon such securities as they may select.
100. No dividend shall be declared and paid unless the directors determine that
immediately after the payment of the dividend the Company will be able to
satisfy its liabilities as they become due in the ordinary course of its
business and the realizable value of the assets of the Company will not be
less than the sum of its total liabilities, other than deferred taxes, as
shown in its books of account, and its capital. In the absence of fraud,
the decision of the directors as to the realizable value of the assets of
the Company is conclusive, unless a question of law is involved.
101. Notice of any dividend that may have been declared shall be given to each
member in the manner hereinafter mentioned and all dividends unclaimed for
3 years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
102. No dividend shall bear interest as against the Company and no dividend
shall be paid on shares described in Regulation 24.
103. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
104. In the case of a dividend of authorised but unissued shares with par
value, an amount equal to the aggregate par value of such shares shall be
transferred from surplus to capital at the time of the distribution.
105. In the case of a dividend of authorised but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to
the amount that such shares are entitled to as a preference, if any, in
the assets of the Company upon liquidation of the Company.
106. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having a
proportionately smaller par value does not constitute a dividend of
shares.
ACCOUNTS
107. The Company shall keep such accounts and records as the directors consider
necessary or desirable in order to reflect the financial position of the
Company.
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108. The members may, but are not bound to, require the directors to prepare
profit and loss accounts and balance sheet and, unless so required, the
directors shall not be bound to prepare such profit and loss accounts and
balance sheet.
109. A copy of such profit and loss account and balance sheet, if prepared,
shall be served on every member in the manner and with similar notice to
that prescribed herein for calling a meeting of members or upon such
shorter notice as the members may agree to accept.
110. The Company may by a resolution of directors include in the computation of
surplus for any purpose the unrealized appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
AUDIT
111. The Company may by resolution of members call for the accounts to be
examined by auditors.
112. The first auditors may be appointed by resolution of directors; subsequent
auditors may be appointed by resolution of members.
113. The auditors may be members of the Company but no director or other
officer shall be eligible to be an auditor of the Company during his
continuance in office.
114. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be fixed by
resolution of directors;
(b) subject to the foregoing, shall be fixed by resolution of
members or in such manner as the Company may by resolution of
members determine.
115. The auditors shall examine each profit and loss account and balance sheet,
if required, to be served on every member of the Company or laid before a
meeting of the members of the Company and shall state in a written report
whether or not
(a) in the opinion the profit and loss account and balance sheet give a
true and fair view respectively of the profit and loss for the period
covered by the accounts, and of the state of affairs of the Company
at the end of that period;
(b) all the information and explanations required by the auditors
have been obtained.
116. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
117. Every auditor of the Company shall have the right of access at all times
to the books of account and vouchers of the Company, and shall be entitled
to require from the directors and officers of the Company such information
and explanations as he thinks necessary for the performance of his duties.
118. The auditors of the Company shall be entitled to receive notice of and
attend any meetings of members of the Company at which the Company's
profit and loss account and balance sheet are to presented.
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NOTICES
119. Any notice, information or written statement to be given by the Company to
members must be served in the case of members holding registered shares by
mail addressed to each member at the address shown in the share register
and in the case of members holding shares issued to bearer, in the manner
provided in the Memorandum.
120. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its Registered
Office, or by leaving it with, or by sending it by registered mail to, the
Registered Agent of the Company.
121. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing
that the summons, notice, order, document, process, information or written
statement was mailed in such time as to admit to its being delivered in
the normal course of delivery within the period prescribed for service and
was correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
122. The directors may establish and maintain or procure the establishment and
maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving of
donations, gratuities, pensions, allowances or emoluments to any persons
who are or were at any time in the employment or service of the Company or
any company which is a subsidiary of the Company or is allied to or
associated with the Company or with any such subsidiary, or who are or
were at any time directors or officers of the Company or of any such other
company as aforesaid or who hold or held any salaried employment or office
in the Company or such other company, or any persons in whose welfare the
Company or any such other company as aforesaid is or has been at any time
interested, and to the wives, widows, families and dependents of any such
person, and may make payments for or towards the insurance of any such
persons as aforesaid, and may do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid. Subject always
to the proposals being approved by resolution of members, a director
holding any such employment, or office shall be entitled to participate in
and retain for his own benefit any such donation, gratuity, pension,
allowance or emolument.
ARBITRATION
123. Whenever any difference arises between the Company on the one hand and any
of the members or their executors, administrators or assigns on the other
hand, touching the true intent and construction of the incidence or
consequences of these Articles or of the Ordinance, touching anything done
or executed, omitted or suffered in pursuance of the Ordinance or touching
any breach or alleged breach or otherwise relating to the premises or to
these Articles, or to any Act or Ordinance affecting the Company or to any
of the affairs of the Company such difference shall, unless the parties
agree to refer the same to a single arbitrator, be referred to 2
arbitrators one to be chosen by each of the parties to the difference and
the arbitrators shall before entering on the reference appoint an umpire.
124. If either party to the reference makes default in appointing an arbitrator
either originally or by way of substitution (in the event that an
appointed arbitrator shall die, be incapable of acting or refuse to act)
for 10 days after the other party has given him notice to appoint the
same, such other party may appoint an arbitrator to act in the place of
the arbitrator of the defaulting party.
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VOLUNTARILY WINDING UP AND DISSOLUTION
125. The Company may voluntarily commence to wind up and dissolve by a
resolution of members or a resolution of directors but if the Company has
never issued shares it may voluntarily commence to wind up and dissolve by
a resolution of directors.
CONTINUATION
126. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
We, Arias Fabrega & Fabrega Trust Co. BVI Limited of Wickhams Cay, Road
Town, Tortola, British Virgin Islands for the purpose of incorporating an
International Business Company under the laws of the British Virgin Islands
hereby subscribe our name to these Articles of Association the 27th day of
March, 1998 in the presence of:
Subscriber
/s/ Illegible
Arias Fabrega & Fabrega Trust Co. BVI Limited
Witness
Nadia Harrigan
/s/ NADIA HARRIGAN
Wickhams Cay
Road Town, Tortola
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