Exhibit 99.8
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP.291)
ARTICLES OF ASSOCIATION
OF
FALCON LINK INVESTMENT LIMITED
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following
table shall bear the meanings set opposite them respectively in the
second column thereof.
WORDS MEANING
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
convened and constituted meeting of
directors of the Company or of a
committee of directors of the
Company by the affirmative vote of
a simple majority of the directors
present at the meeting who voted
and did not abstain; or
(b) a resolution consented to in
writing by all directors or of all
members of the committee, as the
case may be;
except that where a director is given more
than one vote, he shall be counted by the
number of votes he casts for the purpose of
establishing a majority.
resolution of members (a) A resolution approved at a duly
convened and constituted meeting of
the members of the Company by the
affirmative vote of
(i) a simple majority of the
vote of the shares
entitled to vote thereon
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 Act The International Business Companies Act
(No. 8 of 1984) including any modification,
extension, re-enactment or renewal thereof
and any regulations made thereunder.
the Memorandum The Memorandum of Association of the Company
as originally framed or as from time to time
amended.
the Seal Any Seal which has been duly adopted as the
Seal of the Company.
these Articles These Articles of Association as originally
framed or as from time to time amended.
treasury shares Shares in the Company that were previously
issued but were repurchased, redeemed or
otherwise acquired by the Company and not
cancelled.
2. "Written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented
or reproduced by any mode of reproducing words in a visible form,
including telex, facsimile, telegram, cable or other form of writing
produced by electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall
bear the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, were the
context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and
not the number of members who actually voted and a reference to shares
being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be
issued according to the provisions of the Memorandum.
SHARES, AUTHORIZED CAPITAL, CAPITAL AND SURPLUS
7. Subject to the provisions of these Articles and any resolution of
members, the unissued shares of the Company shall be at the disposal of
the directors who may, without limiting or affecting any rights
previously conferred on the holders of any existing shares or class or
series or 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 be resolution of directors determine.
8. No share in the Company may be issued until the consideration in
respect thereof is fully paid, and when issued the share is for all
purposes fully paid and non-assessable save that a share issued for a
promissory note or other written obligation for payment of a debt may
be issued subject to forfeiture in the manner prescribed in these
Articles.
9. Share 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 forgoing as shall be determined by a resolution of
directors.
10. Shares in the Company may be issued for such amount of consideration as
the directors may from time to time by resolution of directors
determine, except that in the case of shares with par value, the amount
shall not be less than the par value, and in the absence of fraud the
decision of the directors as to the value of the consideration received
by the Company in respect of the issue is conclusive unless a question
of law is involved. The consideration in respect of the shares
constitutes capital to the extent of the par value and
the excess constitutes surplus.
11. A share issued by the Company upon conversion of, or in exchange for,
another share of a debt obligation or other security in the Company,
shall be treated for all purposes as having been issued for money equal
to the consideration received or deemed to have been received by the
Company in respect of the other share, debt obligation or security.
12. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the
Company may be resolution of directors determine.
13. 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.
14. Upon the issue by the Company of a share without par value, if an
amount is stated in the Memorandum to be authorized capital represented
by such shares then each share shall be issued for no less than the
appropriate proportion of such amount which shall constitute capital,
otherwise the consideration in respect of the share constitutes capital
to the extent designated by the directors and the excess constitutes
surplus, except that the directors must designate as capital an amount
of the consideration that is at least equal to the amount that the
share is entitled to as a preference, if any, in the assets of the
Company upon liquidation of the Company.
15. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares
of equal value.
16. Subject to provisions to the contrary in
(a) the Memorandum or these Articles;
(b) the designations, powers, preferences, rights, qualifications,
limitations and restrictions with which the shares were
issued; or
(c) the subscription agreement for the issue of the shares;
the Company may not purchase, redeem or otherwise acquire its own
shares without the consent of members whose shares are to be purchased,
redeemed or otherwise acquired.
17. No purchase redemption of other acquisition of shares shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business
and the realizable value of the assets of the Company will not be less
than the sum of its total liabilities, other than deferred taxes, as
shown in the books of account, and its capital and, in the absence of
fraud, the decision of the directors as to the realizable value of the
assets of the Company is conclusive, unless a question of law is
involved.
18. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired.
(a) pursuant to a right of a member to have his shares redeemed or
to have his shares exchanged for money or other property of
the Company;
(b) by virtue of a transfer of capital pursuant to Regulation 49;
(c) by virtue of the provisions of Section 83 of the Act; or
(d) pursuant to an order of the Court.
19. Shares that the Company purchases, redeems or otherwise acquires
pursuant to the preceding Regulation may be cancelled or held as
treasury shares except to the extent that such shares are in excess of
80 percent of the issued shares of the Company in which case they shall
be cancelled but they shall be available for reissue.
20. 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.
21. The Company may purchase, redeem or otherwise acquire its shares at a
price lower than the fair value if permitted by, and then only in
accordance with, the terms of
(a) the Memorandum or these Articles, or
(b) a written agreement for the subscription for the shares to be
purchased, redeemed or otherwise acquired.
22. 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.
SHARE CERTIFICATES
23. Every member holding shares in the Company shall be entitled to a
certificate signed by a director or officer of the Company and under
the Seal specifying the share or shares held by him and the signature
of the director or officer and the Seal may be facsimiles.
24. Any member receiving a share certificate 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 any wrongful or
fraudulent use or representation made by any person by virtue of the
possession thereof, if a share certificate 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.
25. 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.
MORTGAGES AND CHARGES OF SHARES
26. Members may mortgage or charge their shares in the Company and upon
satisfactory evidence thereof the Company shall give effect to the
terms of any valid mortgage or charge except in so far as it may
conflict with any requirements herein contained for consent to the
transfer of shares.
27. In the case of the mortgage or charge of shares there may be entered in
the share register of the Company at the request of the registered
holder of such shares.
(a) a statement that the shares are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the aforesaid particulars are entered in the
share register.
28. Where particulars of a mortgage or charge are registered, such
particulars shall be cancelled
(a) with the consent of the named mortgagee or chargee or anyone
authorized to act on his behalf; or
(b) upon evidence satisfactory to the directors of the discharge
of the liability secured by the mortgage or charge and the
issue of such indemnities as the directors shall consider
necessary or desirable.
29. Whilst particulars of a mortgage or charge are registered, no transfer
of any share comprised therein shall be affected without the written
consent of the named mortgagee or chargee or anyone authorized to act
on his behalf.
FORFEITURE
30. When shares issued for a promissory note or other written obligation
for payment of a debt has been issued subject to forfeiture, the
following provisions shall apply.
31. Written notice specifying a date for payment to be made and the shares
in respect of which payment is to be made shall be served on the member
who defaults in making payment pursuant to a promissory note or other
written obligations to pay a debt.
32. The written notice specifying a date for payment shall
(a) name a further date not earlier than the expiration of 14 days
from the date of service of the notice on or before which
payment required by the notice is to be made; and
(b) contain a statement that in the event of non-payment at or
before the time named in the notice the shares, or any of
them, in respect of which payment is not made will be liable
to be forfeited.
33. Where a written notice has been issued and the requirements have not
been complied with within the prescribed time, the directors may at any
time before tender of payment forfeit and cancel the shares to which
the notice relates.
34. The Company is under no obligation to refund any moneys to the member
whose shares have been forfeited and cancelled pursuant to these
provisions. Upon forfeiture and cancellation of the shares the member
is discharged from any further obligation to the Company with respect
to the shares forfeited and cancelled.
LIEN
35. The Company shall have a first and paramount lien on every share issued
for a promissory note or for any other binding obligation to contribute
money or property or any combination thereof to the Company, and the
Company shall also have a first and paramount lien on every share
standing registered in the name of a member, whether singly or jointly
with any other person or persons, for all the debts and liabilities of
such member or his estate to the Company, whether the same shall have
been incurred before or after notice to the Company of any interest of
any person other than such member, and whether the time for the payment
or discharge of the same shall have actually arrived or not, and
notwithstanding that the same are joint debts or liabilities of such
member or his estate and any other person, whether a member of the
Company or not. The Company's lien on a share shall extend to all
dividends payable thereon. The directors may at any time either
generally, or in any particular case, waive any lien that has arisen or
declare any share to be wholly or in part exempt from the provisions of
this Regulation.
36. In the absence of express provisions regarding sale the promissory note
or other binding obligation to contribute money or property, the
Company may sell, in such manner as the directors may be resolution of
directors determine, any share on which the Company has a lien, but no
sale shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of twenty-one days after
a notice in writing, stating and demanding payment of the sum presently
payable and giving notice of the
intention to sell in default of such payment, has been served on the
holder for the time being of the shares.
37. The net proceeds of the sale by the company of any shares on which it
has a lien shall be applied in or towards payment or discharge of the
promissory note or other binding obligation to contribute money or
property or any combination thereof in respect of which the lien exists
so far as the same is presently payable and any residue shall (subject
to a like lien for debts or liabilities not presently payable as
existed upon the share prior to the sale) be paid to the holder of the
share immediately before such sale. For giving effect to any such sale
the directors may authorize some person to transfer the share sold to
the purchaser thereof. The purchaser shall be registered as the holder
of the share and he shall not be bound to see to the application of the
purchase money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
TRANSFER OF SHARES
38. Subject to any limitations in the Memorandum, shares in the Company may
be transferred by a written instrument of transfer singed 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.
39. The Company shall not be required to treat a transferee of a share in
the Company as a member until the transferee's name has been entered in
the share register.
40. Subject to any limitations in the Memorandum, the Company must on the
application of the transferor or transferee of a 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 that 60 days in any period of 12 months.
TRANSMISSION OF SHARES
41. The executor or administrator of a deceased member, the guardian of an
incompetent member, or the trustee of a bankrupt member shall be the
only person recognized by the Company as having any title to his share,
(subject as provided in the next following regulation), 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 following three Regulations.
42. (a) The production to the Company of any document which is
evidence of probate of the will or letters of administration
of the estate, or confirmation as executor, of a deceased
member or of the appointment of a guardian of an incompetent
member or the trustee of a bankrupt member shall be accepted
by the Company even if the deceased, incompetent or bankrupt
member is domiciled outside the British Virgin Islands if the
document evidencing the grant of probate or letters of
administration, confirmation as executor, appointment as
guardian or trustee in bankruptcy is issued by a foreign court
which had competent jurisdiction in the matter. For the
purpose of establishing whether or not a foreign court had
competent jurisdiction in such a matter the directors may
obtain appropriate legal advice. The directors may also
require an indemnity to be given by the executor,
administrator, guardian or trustee in bankruptcy.
(b) In the event of the death, incompetency or bankruptcy of the
sole member of the Company who is also the sole director of
the Company, then upon the production of the relevant
documents referred to in (a) above to the Company's registered
agent in the British Virgin Islands together with, if required
by the said agent, a notarized copy of the share
certificate(s) of the deceased, incompetent or bankrupt
member, an indemnity in favor of the said agent, (such
indemnity documents to be secured by a bank guarantee or other
adequate security as required by the said agent in its
absolute discretion), and an appropriate legal advice in
respect of any document issued by a foreign court, then the
administrator executor guardian or trustees in bankruptcy (as
the case may be ) notwithstanding that their name shall not
have been entered in the share register of the Company, may
nevertheless, by written resolution appoint a director or
directors of the Company.
43. 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.
44. Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person to be
named by him be registered as the transferee of such share or shares
and such request shall likewise be treated as if it were a transfer.
45. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and
the circumstances of the case.
REDUCTION OR INCREASE IN AUTHORIZED CAPITAL OR CAPITAL
46. The Company may be a resolution of members or directors amend the
Memorandum to increase or reduce its authorized capital and in
connection therewith the Company may in respect of any unissued shares
increase or reduce the number of such shares, increase or reduce the
par value of any such shares or effect any combination of the
foregoing.
47. The Company may amend the Memorandum to
(a) divide the shares, including issued shares, of a class or
series into a larger number of shares of the same class or
series, or
(b) combine the shares, including issued shares, of a class or
series into a smaller number of shares of the same class or
series;
provided, however, that where shares are divided or combined under (a)
or (b) of this Regulation, the aggregate par value or the new shares
must be equal to the aggregate par value of the original shares.
48. The capital of the Company may by a resolution of directors be
increased by transferring an amount of the surplus of the Company to
capital.
49. Subject to the provisions of the following two Regulations, the capital
of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the company to surplus.
50. No reduction of capital shall be effected that reduces the capital of
the Company to an amount that immediately after the reduction is less
than the aggregate par value of all outstanding shares with par value
and all shares with par value held by the Company as treasury shares
and the aggregate of the amounts designated as capital of all
outstanding shares without par value and all shares without par value
held by the Company as treasury shares that are entitled to a
preference, if any, in the assets of the Company upon liquidation of
the Company.
51. 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.
MEETINGS AND CONSENTS OF MEMBERS
52. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside
the British Virgin Islands as the directors consider necessary or
desirable.
53. 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.
54. 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 and are entitled
to vote at the meeting.
55. The directors may fix the date notice is given of a meeting of members
as the record ate for determining those shares that are entitled to
vote at the meeting.
56. A meeting of members may be called on short notice:
(a) if members holding not less than 90 percent of the total
number of shares entitled to vote on all matters to be
considered at the meeting, or 90 percent of the votes of each
class or series of shares where members are entitled to vote
thereon as a class or series together with not less than a 90
percent majority of the remaining votes, have agreed to short
notice of the meeting; or
(b) if all members holding shares entitled to vote on all or any
matters to be considered at the meeting have waived notice of
the meeting and for this purpose presence at the meeting shall
be deemed to constitute waiver.
57. The inadvertent failure of the directors to give notice of a meeting to
a member, or the fact that a member has not received notice, does not
invalidate the meeting.
58. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
59. The instrument appointing a proxy shall be produced at the place
appointed for the meeting before the time for holding the meeting at
which the person named in such instrument proposes to vote.
60. An instrument appointing a proxy shall be in substantially the
following form or such other form as the Chairman of the meeting shall
accept as properly evidencing the wishes of the member appointing the
proxy.
(Name of Company)
I/We being a member of the above Company with shares
HEREBY APPOINT
of or failing him
of to be my/our proxy to vote for me/us at the meeting of members to
be held on the day of and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
--------------------------------------
Member
61. The following shall apply in respect of joint ownership of shares:
(a) if two or more persons hold shares jointly each of them may be
present in person or by proxy at a meeting of members and may
speak as a member;
(b) if only one of the joint owners is present in person or by
proxy he may vote on behalf of all joint owners; and
(c) if two or more of the joint owners are present in person or by
proxy they must vote as one.
62. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
63. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50
percent of the votes of the shares or class or series of shares
entitled to vote on resolutions of members to be considered at the
meeting. If a quorum be present, notwithstanding the fact that such
quorum may be represented by only one person then such person may
resolve any matter and a certificate signed by such person accompanied
where such person be a proxy by a copy of the proxy form shall
constitute a valid resolution of members.
64. If within two hours from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of members,
shall be dissolved; in any other case it shall stand adjourned to be
next business day at the same time and place or to such other time and
place as the directors may determine, and if at the adjourned meeting
there are present within one hour from the time appointed for the
meeting in person or by proxy not less than one third of the votes of
the shares or each class or series of shares entitled to vote on the
resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
65. At 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 of 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.
66. 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.
67. At any meeting of the members the Chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall
be announced to the meeting and recorded in the minutes thereof. If the
Chairman shall have any doubt as to the outcome of any resolution put
to the vote, he shall cause a poll to be taken of all vote cast upon
such resolution, but if the Chairman shall fail to take a poll then any
member present in person or by proxy who disputes the announcement by
the chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the Chairman shall
thereupon cause a poll to be taken. If a poll is taken at any meeting,
the result thereof shall be duly recorded in the minutes of that
meeting by the chairman.
68. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any
individual to speak for or represent such member shall be determined by
the law of the jurisdiction where, and by the documents by which, the
person is constituted or derives its existence. In case of doubt, the
directors may in good faith seek legal advice from any qualified person
and unless and until a court of competent jurisdiction shall otherwise
rule, the directors may rely and act upon such advice without incurring
any liability to any member.
69. Any person other than an individual which is a member of the Company
may by resolution of its directors or other governing body authorize
such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of members of the Company, and
the person so authorized shall be entitled to exercise the same powers
on behalf of the person which he represents as that person could
exercise if it were an individual member of the Company.
70. 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.
71. 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.
72. An action that may be taken by the members at a meeting may also be
taken by a resolution of members consented to in writing or by telex,
telegram, cable, facsimile or other written electronic communication,
without the need for any notice, but if any resolution of members is
adopted otherwise than by the unanimous written consent of all members,
a copy of such resolution shall forthwith be sent to all members not
consenting to such resolution. The consent may be in the form of
counterparts, each counterpart being signed by one or more members.
DIRECTORS
73. The first directors of the Company shall be appointed by the
subscribers to the Memorandum; subsequent directors shall be elected by
the members or the directors for such term as the members or the
directors determine.
74. The minimum number of directors shall be one and the maximum number of
directors shall be twenty.
75. Each director shall hold office for the term; if any, fixed by
resolution of members or until his earlier death, resignation or
removal.
76. A director may be removed from office with or without cause, by a
resolution of members or, with cause by a resolution of directors.
77. A director may resign his office be 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.
78. The directors may at any time appoint any person to be a director
either to fill a vacancy or as an addition to be existing directors. A
vacancy occurs through the death, resignation or removal of a director,
but a vacancy or vacancies shall not be deemed to exist where one or
more directors shall resign after having appointed his or their
successor or successors.
79. The company shall keep a Register of Directors containing
(a) the names and addresses of the person who are directors of the
Company;
(b) the date on which each person whose name is entered in the
register was appointed as a director of the Company;
(c) the date on which each person named as a director ceased to be
a director of the Company; and
(d) such other information as may be prescribed.
80. A copy of the Register of Directors shall be kept at the registered
office of the Company and the Company may determine by resolution of
directors to register a copy of the register of directors with the
registrar of Corporate Affairs.
81. With the 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.
82. A director shall not require a share qualification and may be an
individual or a company.
POWERS OF DIRECTORS
83. 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 Act or by the
Memorandum or these Articles required to be exercised by the members of
the Company, subject to any delegation of such powers as may be
authorized by these Articles and to such requirements as may be
prescribed by a resolution of members; but no requirement made by a
resolution of members shall prevail if it be inconsistent with these
Articles nor shall such requirement invalidate any prior act of the
directors which would have been valid if such requirement had not been
made.
84. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company. The resolution of directors appointing an agent may authorize
the agent to appoint one or more substitutes or delegates to exercise
some or all of the powers conferred on the agent by the Company.
85. Every officer or agent of the Company has such powers and authority of
the directors, including the power and authority to affix the Seal, as
are set forth in these Articles or in the resolution of directors
appointing the officer or agent, except that no officer or agent has
any power or authority with respect to the matters requiring a
resolution of directors under the Act.
86. Any director which is a body corporate may appoint any person its duly
authorized representative for the purpose of representing it at meeting
of the Board of Directors or with respect to unanimous written
consents.
87. The continuing directors may act notwithstanding any vacancy in their
body, save that if their number is reduced to their knowledge 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.
88. The directors may be resolution of directors exercise all the powers of
the Company to borrow money and to mortgage or charge its undertakings
and property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for any
debt, liability or obligation of the Company or of any third party.
89. All cheques, promissory notes, draft, 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.
90. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other
encumbrances in which there shall be entered the following particulars
regarding each mortgage, charge and other encumbrance:
(a) the sum secured;
(b) the assets secured;
(c) the name and address of the mortgagee, chargee or other
encumbrance;
(d) the date of creation of the mortgage, charge or other
encumbrance; and
(e) the date on which the particulars specified above in respect
of the mortgage, charge or other encumbrance are entered in
the register.
91. the Company may further determine by a resolution of directors to
register a copy of the register of mortgages, charges or other
encumbrances with the Registrar or Corporate Affairs.
PROCEEDING OF DIRECTORS
92. 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.
93. 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.
94. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors
entitled to vote at the meeting who do not attend, waive notice of the
meeting and for this purpose, the presence of a director at a meeting
shall constitute waiver on his part. The inadvertent failure to give
notice of a meeting to a director, or the fact that a director has not
received the notice, does not invalidate the meeting.
95. A director may by a 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.
96. 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, unless there
are only 2 directors in which case the quorum shall be 2.
97. If the Company shall have only one director the provisions here in
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 Act or the Memorandum or these Articles
required to be exercised by the members of the Company and in lieu of
minutes of a meeting shall record in writing and sign a note or
memorandum of all matters requiring a resolution of directors. Such a
note or memorandum shall constitute sufficient evidence of such
resolution for all purposes.
98. 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 of their
number to be chairman of the meeting.
99. An action that may be taken by the directors or a committee of
directors at a meeting may also be taken by a resolution of directors
or a committee of directors consented to in writing or by telex,
telegram, cable, facsimile or other written electronic communication by
all directors or all members of the committee as the case may be,
without the need for any notice. The consent may be in the form of
counterparts, each counterpart being signed by one or more directors.
100. 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 be 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.
101. The books, records and minutes shall be kept at the registered office
or the Company, its principal place of business or at such other place
as the directors determine.
102. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
103. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are
set forth in the resolution of directors establishing the committee,
except that no committee has any power or authority to amend the
Memorandum or these Articles, to appoint directors or fix their
emoluments, or to appoint officers or agents of the Company.
104. 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
105. The Company may be resolution of directors appoint officers of the
Company at such times as shall be considered necessary or expedient.
Such officers may consist of a 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.
106. The officers shall perform such duties as shall be prescribed at the
time of their appointment subject to any modification in such duties as
may be prescribed thereafter by resolution of directors or resolution
of members, but in the absence of any specific allocation of duties it
shall be the responsibility of the Chairman of the Board of Directors
to preside at meetings of directors and members, the Vice-Chairman to
act in the absence of Chairman, the President to manage the day to day
affairs of the Company, the Vice-Presidents to act in order to
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.
107. The emoluments of all officers shall be fixed by resolution of
directors.
108. 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
109. 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 arty to the agreement or transaction are disclosed in good faith
or are known by the other directors.
110. 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
111. Subject to the limitations hereinafter provided the Company may
indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred
in connection with legal, administrative or investigative proceedings
any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the
fact that the person is or was a director, an officer or a
liquidator of the Company; or
(b) is or was, at the request of the Company, serving as a
director, officer or liquidator of, or in any other capacity
is or was acting for, another company or partnership, joint
venture, trust or other enterprise.
112. The Company may only indemnify a person if the person acted honestly
and in good faith with a view to the best interests of the Company and
in the case of criminal proceedings, the person had no reasonable cause
to believe that his conduct was unlawful.
113. The decision of the directors as to whether the person acted honesty
and in good faith and with a view to the best interests of the Company
and as to whether the person has no reasonable cause to believe that
his conduct was unlawful is, in the absence of fraud, sufficient for
the purposes of these Articles, unless a question of law is involved.
114. The termination of any proceeding 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.
115. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
116. The Company may purchase and maintain insurance in relation to any
person who is or was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture, trust
or other enterprise, against any liability asserted against the person
and incurred by the person in that capacity, whether or not the Company
has or would have had the power to indemnify the person against the
liability as provided in these Articles.
SEAL
117. The Company may have more than one Seal and references herein to the
Seal shall be references to every Seal which shall have been duly
adopted by resolution of directors. The directors shall provide for the
safe custody of the Seal and for an imprint thereof to be kept at the
Registered Office. Except as otherwise expressly provided herein the
Seal when affixed to any written instrument shall be witnessed and
attested to by the signature of a director or any other person so
authorized from time to time by resolution of directors. Such
authorization may be before or after the Seal is affixed may be general
or specific and may refer to any number of sealings. The Directors may
provide for a facsimile of the Seal and of the signature of any
director or authorized person which may be reproduced by printing or
other means on any instrument and it shall have the same force and
validity as if the Seal had been affixed to such instrument and the
same had been signed as hereinbefore described.
DIVIDENDS
118. The Company may by a resolution of directors declare and pay dividends
in money, shares, or other property, but dividends shall only be
declared and paid out of surplus. In the event that dividends are paid
in specie the directors shall have responsibility for establishing and
recording in the resolution of directors authorizing the dividends, a
fair and proper value for the assets to be so distributed.
119. 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.
120. 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.
121. 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.
122. Notice of any dividend that may have been declared shall be given to
each member in manner hereinafter mentioned and all dividends unclaimed
for 3 years after having been declared may be forfeited by resolution
of directors for the benefit of the Company.
123. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of
which the Company holds, directly or indirectly, shares having more
than 50 percent of the vote in electing directors.
124. 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.
125. In the case of a dividend of authorized but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall
be transferred from surplus to capital at the time of the distribution.
126. In the case of a dividend of authorized but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to
the amount that the shares are entitled to as a preference, if any, in
the assets of the Company upon liquidation of the Company.
127. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series
having a proportionately smaller par value does not constitute a
dividend of shares.
ACCOUNTS AND AUDIT
128. The Company may by resolution of members call for the directors to
prepare periodically a profit and loss account and a balance sheet. The
profit and loss account and balance sheet shall be drawn up so as to
give respectively a true and fair view of the profit and loss of the
Company for the financial period and a true and fair view of the state
of affairs of the Company as at the end of the financial period.
129. The Company may by resolution of members call for the accounts to be
examined by auditors.
130. The first auditors shall be appointed by resolution of directors,
subsequent auditors shall be appointed by a resolution of members.
131. 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.
132. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be
fixed by resolution of directors; and
(b) subject to the foregoing, shall be fixed by resolution of
members or in such manner as the Company may be resolution of
members determine.
133. The auditors shall examine each profit and loss account and balance
sheet required to be served on every member of the Company or laid
before a meeting of the members of the Company and shall state in a
written report whether or not
(a) in their opinion the profit and loss account and balance sheet
give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the state of
affairs of the Company at the end of that period; and
(b) all the information and explanations required by the auditors
have been obtained.
134. 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.
135. Every auditor of the Company shall have a right of access at all times
to the books of account and vouchers of the Company, and shall be
entitled to require from the directors and officers of the Company such
information and explanations as he thinks necessary for the performance
of the duties of the auditors.
136. The auditors of the Company shall be entitled to receive notice of, and
to attend any meetings of members of the Company at which the Company's
profit and loss account and balance sheet are to be presented.
NOTICES
137. Any notice, information or written statement to be given by the Company
to members may be served in any way by which it can reasonably be
expected to reach each member or by mail addressed to each member at
the address shown in the share register.
138. 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.
139. Service of any summons, notice, order, document, process, information
or written statement to be served on the Company may be proved by
showing that the summons, notice, order, document, process, information
or written statement was delivered to the registered office or the
registered agent of the Company or that it was mailed in such time as
to admit to its being delivered to the registered office or the
registered agent of the Company in the normal course of delivery within
the period prescribed for service and was correctly addressed and the
postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
140. The directors may establish and maintain or procure the establishment
and maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities, pensions, allowances or emoluments to, any
persons who are or were at any time in the employment or service of the
Company or any company which is a subsidiary of the Company or is
allied to or associated with the Company or with any such subsidiary,
or who are or were at any time directors or officers of the Company or
of any such other company as aforesaid or who hold or held any salaried
employment or office in the Company or such other company, or any
persons in whose welfare the Company or any such other company as
aforesaid is or has been at any time interested, and to the wives,
widows, families and dependents of any such person, and may make
payments for or towards the insurance of any such persons as aforesaid,
and may do any of the matters aforesaid either alone or in conjunction
with any such other company as aforesaid. Subject always to the
proposal being approved by resolution of members, a director holding
any such employment or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension
allowance or emolument.
ARBITRATION
141. 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 or the incidence
or consequences of these Articles or of the Act, touching anything done
or executed, omitted or suffered in pursuance of the Act 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.
142. 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.
VOLUNTARY WINDING UP AND DISSOLUTION
143. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of
directors.
CONTINUATION
144. The Company may be 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, East Asia Corporate Services (BVI) Limited, of East Asia Chambers,
P.O. Box 901, 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 21st day of July 2005 in the presence of:
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Witness Subscriber
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Adrian J. Hogg Patrick A. Nicholas
East Asia Chambers Authorized Signatory
P.O. Box 901 East Asia Corporate Services (BVI) Limited
Road Town, Tortola
British Virgin Islands
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