[EXHIBIT 3.1]
THE COMPANIES LAW (2007 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
PAN ASIAN CORPORATION
(Adopted by special resolution on 1 MARCH 2008)
1. The name of the Company is PAN ASIAN CORPORATION.
2. The registered office of the Company shall be at the offices
of Stuarts Corporate Services Ltd., P.O. Box 2510, Grand Cayman
KY1-1104, Cayman Islands or at such other place as the directors
of the Company may, from time to time, decide.
3. The objects for which the Company is established are
unrestricted and the Company shall have full power and authority
to carry out any object not prohibited by the Companies Law (2007
Revision), or as the same may be revised from time to time, or
any other law of the Cayman Islands.
4. The Company shall have and be capable of exercising all the
functions of a natural person of full capacity or body corporate
in doing in any part of the world whether as principal, agent,
contractor or otherwise whatever may be considered by it
necessary for the attainment of its objects and whatever else may
be considered by it as incidental or conducive thereto or
consequential thereon, irrespective of any question of corporate
benefit as provided by section 27(2) of the Companies Law (2007
Revision) including the power to make any alterations or
amendments to its Memorandum and Articles of Association in the
manner set out in its Articles of Association and including, but
not limited to, the power to pay all expenses of and incidental
to the promotion, formation and incorporation of the Company; to
register the Company and do business in any other jurisdiction;
to sell, lease or dispose of any property of the Company; to
draw, make, accept, endorse, discount, execute and issue
promissory notes, debentures, bills of exchange, bills of lading,
warrants and other negotiable or transferable instruments; to
lend money on the security of the undertaking or on all or any of
the assets of the Company including uncalled capital or without
security; to invest moneys of the Company in such manner as the
directors of the Company determine; to promote other companies;
to sell the undertaking of the Company for cash or any other
consideration; to distribute assets in specie to members of the
Company; to make charitable or benevolent donations; to pay
pensions or gratuities or provide other benefits in cash or kind
to directors, officers and/or employees of the Company, past or
present and their families; to purchase directors and officers'
liability insurance and to carry on any trade or business and
generally to do all acts and things which in the opinion of the
Company or the directors of the Company may be conveniently or
profitably or usefully acquired and dealt with, carried on,
executed or done by the Company in connection with the business
aforesaid PROVIDED THAT the Company shall only carry on the
businesses for which a licence is required under the laws of the
Cayman Islands when so licensed under the terms of such laws.
5. The liability of each member of the Company is limited to
the amount, if any, unpaid on the Shares held by such member.
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Companies Law (2007 Revision)
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6. The share capital of the Company is US$5,100 divided into
39,062,500 Ordinary Shares of US$0.000128 par value each and
781,250 Preference Shares of US$0.000128 par value. Subject to
the provisions of the Companies Law (2007 Revision) and the
Articles of Association of the Company, the Company shall have
the power to redeem or purchase any of its Shares and to
increase, reduce, sub-divide or consolidate the share capital and
to issue all or any part of its capital whether original,
redeemed, increased or reduced with or without any preference,
priority or special privilege or subject to any postponement of
rights or to any conditions or restrictions whatsoever and so
that unless the conditions of issue shall otherwise expressly
provide every issue of Shares whether stated to be ordinary,
preference or otherwise shall be subject to the powers on the
part of the Company hereinbefore provided.
7. If the Company is registered as exempted, its operations
shall be carried on subject to section 193 of the Companies Law
(2007 Revision). The Company may effect and conclude contracts
in the Cayman Islands, and exercise in the Cayman Islands all of
its powers necessary for the carrying on of its business outside
the Cayman Islands but shall not otherwise trade in the Cayman
Islands with any person, firm or corporation except in
furtherance of the business of the Company carried on outside the
Cayman Islands.
8. Subject to the provisions of the Companies Law (2007
Revision) and the Articles of Association, the Company may
exercise the power contained in section 226 of the Companies Law
(2007 Revision) to deregister in the Cayman Islands and register
by way of continuation under the laws of any jurisdiction outside
the Cayman Islands.
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Companies Law (2007 Revision)
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TABLE OF CONTENTS
THE COMPANIES LAW (2007 REVISION)..............................1
THE COMPANIES LAW (2007 REVISION)..............................5
TABLE A........................................................5
INTERPRETATION.................................................5
COMMENCEMENT OF BUSINESS.......................................7
REGISTERED OFFICE..............................................7
REGISTER OF MEMBERS............................................7
SHARE CERTIFICATES.............................................7
ISSUE OF SHARES................................................8
COMMISSION ON SALE OF SHARES...................................8
TRANSFER OF SHARES.............................................8
TRANSMISSION OF SHARES.........................................9
REDEMPTION AND PURCHASE OF OWN SHARES..........................9
VARIATION OF RIGHTS ATTACHING TO SHARES.......................10
FRACTIONAL SHARES.............................................10
LIEN ON SHARES................................................10
CALLS ON SHARES...............................................11
FORFEITURE OF SHARES..........................................12
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Companies Law (2007 Revision)
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ALTERATION OF CAPITAL.........................................13
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE.............13
GENERAL MEETINGS OF MEMBERS...................................14
NOTICE OF GENERAL MEETINGS....................................14
PROCEEDINGS AT GENERAL MEETINGS...............................14
VOTES OF MEMBERS..............................................15
MEMBERS' PROXIES..............................................16
COMPANIES ACTING BY REPRESENTATIVES AT MEETINGS...............16
APPOINTMENT OF DIRECTORS......................................17
ALTERNATE DIRECTORS...........................................17
POWERS AND DUTIES OF DIRECTORS................................18
BORROWING POWERS OF DIRECTORS.................................18
APPOINTMENT OF OFFICERS.......................................18
COMMITTEES OF DIRECTORS.......................................18
PROCEEDINGS OF DIRECTORS......................................19
DISQUALIFICATION OF DIRECTORS.................................21
DIVIDENDS.....................................................21
FINANCIAL YEAR................................................22
ACCOUNTS AND AUDIT............................................22
CAPITALIZATION OF PROFITS.....................................22
SHARE PREMIUM ACCOUNT.........................................23
NOTICES.......................................................23
THE SEAL......................................................24
INDEMNITY.....................................................25
NON-RECOGNITION OF TRUSTS.....................................25
WINDING UP....................................................25
AMENDMENT OF MEMORANDUM OF ASSOCIATION........................26
AMENDMENT OF ARTICLES OF ASSOCIATION..........................26
REGISTRATION BY WAY OF CONTINUATION...........................26
36A Dr. Roy's Drive...........................................27
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Companies Law (2007 Revision)
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THE COMPANIES LAW (2007 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
PAN ASIAN CORPORATION
(Adopted by special resolution on 1 March 2008)
TABLE A
-------
1. Table 'A' in the First Schedule of the Companies Law (2007
Revision) shall not apply to this Company and the following
shall comprise the Articles of Association of the Company:
INTERPRETATION
--------------
2. In these Articles save where the context otherwise requires:-
"Articles" or "Articles of Association" means these articles
of association as originally adopted or as, from time to
time, altered by Special Resolution;
"certificate" or "share certificate" means a share
certificate of the Company;
"Companies Law" means the Companies Law (2007 Revision) of
the Cayman Islands and any statutory amendment or re-
enactment thereof. Where any provision of the Companies Law
is referred to, the reference is to that provision as
amended by any law for the time being in force;
"Company" means the above named company;
"debenture" means debenture stock, mortgages, bonds and any
other such securities of the Company whether constituting a
charge on the assets of the Company or not;
"Directors" and "Board of Directors" means the directors of
the Company for the time being or, as the case may be, the
directors assembled as a board or as a committee thereof and
"Director" means any one of the Directors;
"Members" means those persons who have agreed to become
members of the Company and whose names have been entered in
the Register of Members and includes each subscriber of the
Memorandum and "Member" means any one of them;
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" Memorandum of Association" means the memorandum of
association of the Company, as amended and re-stated from
time to time;
"month" means calendar month;
"Ordinary Resolution" means a resolution:-
(i) passed by a simple majority of the Members as, being
entitled to do so, vote in person or, where proxies are allowed,
by proxy at a general meeting of the Company and where a poll is
taken regard shall be had in computing a majority to the number
of votes to which each Member is entitled; or
(ii) approved in writing by all of the Members entitled to vote
at a general meeting of the Company in one or more instruments
each signed by one or more of the Members and the effective date
of the resolution so adopted shall be the date on which the
instrument, or the last of such instruments if more than one, is
executed;
"paid up" means paid up as to the par value and any premium
payable in respect of the issue of any shares and includes
credited as paid up;
"Registered Office" means the registered office for the time
being of the Company;
"Register of Members" means the register of members to be
kept by the Company in accordance with section 40 of the
Companies Law;
"Seal" means the common seal of the Company (if adopted)
including any facsimile thereof;
"Share" and "Shares" means a share or shares in the capital
of the Company, including a fraction of a share;
"signed" includes a signature or representation of a
signature affixed by mechanical means;
"Special Resolution" means a resolution passed in accordance
with section 60 of the Companies Law, being a resolution:-
(i) passed by a majority of not less than two-thirds of
such Members as, being entitled to do so, vote in
person or, where proxies are allowed, by proxy at a
general meeting of the Company of which notice
specifying the intention to propose the resolution as a
special resolution has been duly given and where a poll
is taken regard shall be had in computing a majority to
the number of votes to which each Member is entitled; or
(ii) approved in writing by all of the Members entitled to
vote at a general meeting of the Company in one or more
instruments each signed by one or more of the Members
and the effective date of the special resolution so
adopted shall be the date on which the instrument or
the last of such instruments if more than one, is
executed; and
"written" and "in writing" includes all modes of
representing or reproducing words in visible form.
3. In these Articles save where the context otherwise requires:-
3.1 words importing the singular number shall include the plural
number and vice versa;
3.2 words importing the masculine gender only shall include the
feminine gender;
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3.3 words importing persons only shall include companies or
associations or bodies of persons, whether corporate or not;
3.4 "may" shall be construed as permissive and "shall" shall be
construed as imperative;
3.5 a reference to a dollar or dollars (or $) and to a cent or
cents (or c) is a reference to dollars and cents of the United
States of America; and
3.6 references to a statutory enactment shall include reference
to any amendment or re-enactment thereof for the time being in
force.
4. Subject to the two preceding Articles, any expressions
defined in the Companies Law shall, if not inconsistent with the
subject or context of these Articles, bear the same meaning in
these Articles.
COMMENCEMENT OF BUSINESS
------------------------
5. The business of the Company may be commenced as soon after
incorporation as the Directors see fit, notwithstanding that part
only of the Shares may have been allotted or issued.
REGISTERED OFFICE
-----------------
6. The Registered Office of the Company shall be at such place
in the Cayman Islands as the Directors shall from time to time
resolve by resolution. The Company may also establish and
maintain such other offices and places of business and agencies
outside the Cayman Islands as the Directors decide.
REGISTER OF MEMBERS
-------------------
7. The Company shall maintain or cause to be maintained a
Register of Members in accordance with the Companies Law. The
Directors shall keep at the Registered Office or such other place
as determined by them, the Register of Members, which shall
contain the following information:-
7.1 the name and address of each Member, a statement of the
Shares held by him and a statement of the amount paid or agreed
to be considered as paid on such Shares;
7.2 the date on which each person was entered in the register as
a Member; and
7.3 the date on which any person ceased to be a Member.
SHARE CERTIFICATES
------------------
8. Every Member shall, without payment, be entitled to a share
certificate in such form as determined by the Directors.
9. Share certificates shall be signed by a Director of the
Company and shall be numbered consecutively or otherwise
identified and shall specify the number of Shares held by the
Member and the amount paid up thereon.
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10. In respect of a Share or Shares held jointly by several
persons the Company shall not be bound to issue more than one
certificate and delivery of a certificate for a Share or Shares
to one of several joint holders shall be sufficient delivery to
all joint holders.
11. If a share certificate is defaced, worn out, lost or
destroyed it may be renewed on payment of such fee, if any, not
exceeding $100 and on such terms, if any, as to evidence and
indemnity as the Directors think fit.
ISSUE OF SHARES
---------------
12. Subject to the provisions, if any, in that behalf of the
Memorandum of Association or these Articles, and to any direction
that may be given by the Company in general meeting and without
prejudice to any special rights previously conferred on the
holders of existing Shares, all unissued Shares in the capital of
the Company shall be under the control of the Directors, and the
Directors may issue, allot, grant options over, re-designate or
dispose of such unissued Shares (including fractions of a Share)
with or without preferred, deferred or other special rights or
such restrictions whether in regard to dividend, voting, return
of capital or otherwise and in such manner, to such persons and
on such terms as the Directors in their absolute discretion think
fit.
13. The Company shall not issue Shares in bearer form.
COMMISSION ON SALE OF SHARES
----------------------------
14. The Company may in so far as may be permitted by law, pay a
commission to any person in consideration of his subscribing or
agreeing to subscribe whether absolutely or conditionally for any
Shares. Such commission may be satisfied by the payment of cash
or the lodgment of fully or partly paid-up Shares or partly in
one way and partly in the other. The Company may also on any
issue of Shares pay such brokerage as may be lawful.
TRANSFER OF SHARES
------------------
15. The instrument of transfer of any Share shall be in writing
in any usual or common form or such other form approved by the
Directors.
16. The instrument of transfer of any Share shall be executed by
or on behalf of the transferor and the transferee and shall be
accompanied by any certificate of the Shares to which it relates
and such other evidence as the Directors may reasonably require
to show the right of the transferor to make the transfer.
17. All share certificates surrendered to the Company for
transfer shall be cancelled and the Directors shall issue a new
share certificate for a like number of Shares as those which have
been surrendered and cancelled.
18. The Directors may in their absolute discretion decline to
register any transfer of Shares without assigning any reason for
so doing. If the Directors refuse to register a transfer of any
Shares, they shall send notice of the refusal to the transferee
within two months of the date on which the transfer was lodged
with the Company.
19. The registration of transfers may be suspended at such times
and for such periods as the Directors may from time to time
determine, provided always that such registration shall not be
suspended for more than 45 days in any year.
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TRANSMISSION OF SHARES
----------------------
20. The legal personal representative of a deceased sole holder
of a Share shall be the only person recognized by the Company as
having any title to the Share. In the case of a Share registered
in the name of two or more holders, the survivors or survivor, or
the legal personal representatives of the deceased survivor,
shall be the only person recognized by the Company as having any
title to the Share.
21. Any person becoming entitled to a Share in consequence of
the death, bankruptcy, liquidation or dissolution of a Member
shall upon such evidence being produced as may from time to time
be properly required by the Directors, have the right either to
be registered as a member in respect of the Share (and if he so
elects shall deliver to the Company a notice in writing signed by
him stating his election to be registered as holder) or, instead
of being registered himself, to make such transfer of the Share
as the deceased or bankrupt person could have made; but the
Directors shall, in either case, have the same right to decline
or suspend registration as they would have had in the case of a
transfer of the Share by the deceased or bankrupt person before
the death or bankruptcy.
22. A person becoming entitled to a Share by reason of the
death, bankruptcy liquidation or dissolution of the holder shall
be entitled to the same dividends and other advantages to which
he would be entitled if he were the registered holder of the
Share, except that he shall not, before being registered as a
Member in respect of the Share, be entitled in respect of it to
exercise any right conferred by membership in relation to
meetings of the Company PROVIDED THAT the Directors may at any
time give notice requiring any such person to elect either to be
registered himself or to transfer the Share and if the notice is
not complied with within ninety days the Directors may thereafter
withhold payment of all dividends, bonuses or other moneys
payable in respect of the Share until the requirements of the
notice have been complied with.
REDEMPTION AND PURCHASE OF OWN SHARES
-------------------------------------
23. Subject to the provisions of the Companies Law, the Company may:-
23.1 issue Shares on terms that they are to be redeemed or are
liable to be redeemed at the option of the Company or the Member
on such terms and in such manner as the Directors may, before the
issue of such Shares, determine;
23.2 purchase its own Shares (including fractions of a Share and
any redeemable Shares) on such terms and in such manner as the
Directors may determine and agree with the Member; and
23.3 make a payment in respect of the redemption or purchase of
its own Shares in any manner authorized by the Companies Law
including out of capital.
24. A Share which is liable to be redeemed by either the Company
or the Member shall be redeemed by the entitled party giving to
the other notice in writing of the intention to redeem such
Shares (a "Redemption Notice") and specifying the date of such
redemption which must be a day on which banks in the Cayman
Islands are open for business.
25. Any Share in respect of which a Redemption Notice has been
given shall not be entitled to participate in the profits of the
Company in respect of the period after the date specified as the
date of redemption in the Redemption Notice.
26. The redemption or purchase of any Share shall not be deemed
to give rise to the redemption or purchase of any other Share.
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27. At the date specified in the Redemption Notice, or the date
on which the Shares are to be purchased, the holder of the Shares
being redeemed or purchased shall be bound to deliver up to the
Company at its Registered Office the certificate thereof for
cancellation and thereupon the Company shall pay to him the
redemption or purchase moneys in respect thereof.
28. The Directors may, when making payments in respect of the
redemption or purchase of Shares, if authorized by the terms of
issue of the Shares being redeemed or purchased or with the
agreement of the holder of such Shares, make such payment either
in cash or in specie.
VARIATION OF RIGHTS ATTACHING TO SHARES
---------------------------------------
29. If at any time the share capital of the Company is divided
into different classes of Shares, the rights attaching to any
class (unless otherwise provided by the terms of issue of the
Shares of that class) may be varied with the consent in writing
of the holders of two-thirds of the issued Shares of that class,
or with the sanction of a Special Resolution passed at a general
meeting of the holders of the issued Shares of that class present
in person or by proxy.
30. The provisions of these Articles relating to general
meetings of the Company shall mutatis mutandis apply to every
such general meeting of the holders of such class of Shares, but
so that the necessary quorum shall be at least one person holding
or representing by proxy at least one-third of the issued Shares
of the class and so that any holder of Shares of the class
present in person or by proxy may demand a poll.
31. The rights conferred upon the holders of the Shares of any
class issued with preferred or other rights shall not, unless
otherwise expressly provided by the terms of issue of the Shares
of that class, be deemed to be varied by the creation or issue of
further Shares ranking pari passu therewith or by the redemption
or purchase of Shares of any class by the Company.
FRACTIONAL SHARES
-----------------
32. The Directors may issue fractions of a Share of any class of
Shares, and, if so issued, a fraction of a Share (calculated to
three decimal points) shall be subject to and carry the
corresponding fraction of liabilities (whether with respect to
any unpaid amount thereon, contribution, calls or otherwise),
limitations, preferences, privileges, qualifications,
restrictions, rights (including, without limitation, voting and
participation rights) and other attributes of a whole Share of
the same class of Shares. If more than one fraction of a Share
of the same class is issued to or acquired by the same Member
such fractions shall be accumulated.
LIEN ON SHARES
--------------
33. The Company shall have a first priority lien and charge on
every partly paid Share for all moneys (whether presently payable
or not) called or payable at a fixed time in respect of that
Share, and the Company shall also have a first priority lien and
charge on all partly paid Shares registered in the name of a
Member (whether held solely or jointly with another person) for
all moneys presently payable by him or his estate to the Company;
but the Directors may at any time declare any Share to be wholly
or in part exempt from the provisions of this Article. The
Company's lien, if any, on a Share shall extend to all dividends
and other moneys payable in respect thereof.
34. The Company may sell, in such manner as the Directors think
fit, any Shares on which the Company has a lien, but no sale
shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of 14 days after a
notice in writing, stating and demanding payment of such part of
the amount in respect of which the lien exists as is presently
payable, has been given to the registered holder for the time
being of the Share, or the persons entitled thereto of which the
Company has notice, by reason of his death or bankruptcy.
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35. To give effect to any such sale the Directors may authorize
some person to transfer the Shares sold to the purchaser thereof.
The purchaser shall be registered as the holder of the Shares
comprised in any such transfer and he shall not be bound to see
to the application of the purchase money, nor shall his title to
the Shares be affected by any irregularity or invalidity in the
proceedings in reference to the sale.
36. The proceeds of such sale shall be received by the Company
and applied in payment of such part of the amount in respect of
which the lien exists as is presently payable, and the residue
(if any) shall (subject to a like lien for sums not presently
payable as existed upon the Shares prior to the sale) be paid to
the person entitled to the Shares at the date of the sale.
CALLS ON SHARES
---------------
37. The Directors may from time to time make calls upon the
Members in respect of any moneys unpaid on their Shares (whether
on account of the nominal value of the Shares or by way of
premium or otherwise) and each Member shall (subject to receiving
at least 14 days' notice specifying the time or times of payment)
pay to the Company at the time or times so specified the amount
called on his Shares.
38. A call shall be deemed to have been made at the time that
the Directors have resolved by resolution to make such call.
39. The joint holders of a Share shall be jointly and severally
liable to pay calls in respect thereof.
40. Any sum which by the terms of issue of a Share becomes
payable on allotment or at any fixed date, whether on account of
the nominal value of the Share or by way of premium or otherwise,
shall for the purposes of these Articles be deemed to be a call
duly made, notified and payable on the date on which by the terms
of issue the same becomes payable, and in the case of non-payment
all the relevant provisions of these Articles as to payment of
interest, forfeiture or otherwise shall apply as if such sum had
become payable by virtue of a call duly made and notified.
41. If a sum called in respect of a Share is not paid before or
on the day appointed for payment thereof, the person from whom
the sum is due shall pay interest upon the sum at the rate of
eight per centum per annum from the day appointed for the payment
thereof to the time of the actual payment, but the Directors
shall be at liberty to waive payment of that interest wholly or
in part.
42. The provisions of these Articles as to the liability of
joint holders and as to payment of interest shall apply in the
case of non-payment of any sum which, by the terms of issue of a
Share, becomes payable at a fixed time, whether on account of the
amount of the Share, or by way of premium, as if the same had
become payable by virtue of a call duly made and notified.
43. The Directors may make arrangements on the issue of Shares
for a difference between the Members, or the particular Shares,
in the amount of calls to be paid and in the times of payment and
may revoke or postpone a call in their discretion.
44. The Directors may, if they think fit, receive from any
Member willing to advance the same all or any part of the moneys
uncalled and unpaid upon any Shares held by him, and upon all or
any of the moneys so advanced may (until the same would, but for
such advance, become presently payable) pay interest at such rate
(not exceeding without the sanction of an Ordinary Resolution
eight per centum per annum) as may be agreed upon between the
Member paying the sum in advance and the Directors.
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FORFEITURE OF SHARES
--------------------
45. If a Member fails to pay any call or installment of a call
together with any interest which may have accrued within 10 days
of the day appointed for payment thereof, the Directors may, at
any time thereafter during such time as any part of such call or
installment remains unpaid, enforce any of the provisions of, and
take such action as is referred to in these Articles, including
but not limited to, forfeiting any Share in respect of which the
call or installment of a call remains unpaid. No further notice
demanding payment of the amount due need be given to the
registered holder of the Share or the persons entitled thereto by
reason of his death or bankruptcy of the Shares to be forfeited.
46. A forfeited Share may be sold, cancelled or otherwise
disposed of on such terms and in such manner as the Directors in
their absolute discretion think fit, and at any time before a
sale, cancellation or disposition the forfeiture may be cancelled
on such terms as the Directors in their absolute discretion think
fit. The Company may indirectly procure the purchase of a Share
forfeited pursuant to the previous sentence without being
required to comply with the redemption provisions of these
Articles. The proceeds of the sale or disposition of a forfeited
Share after deduction of expenses, fees and commissions incurred
by the Company in connection with the sale and after the
deduction of all other amounts including accrued interest shall
be received by the Company and applied in payment of such part of
the amount in respect of which any lien or obligation exists as
is presently payable on other Shares held by that Member, and the
residue shall (subject to a like lien for sums not presently
payable as existed upon the Shares prior to such sale or
disposition) be disposed of on such terms as the Directors in
their absolute discretion think fit.
47. A statutory declaration in writing that the declarant is a
Director, and that a Share in the Company has been duly forfeited
on a date stated in the declaration, shall be conclusive evidence
of the facts therein stated as against all persons claiming to be
entitled to the Share. The Company may receive the
consideration, if any, given for the Share on any sale or
disposition thereof and may execute a transfer of the Share in
favour of the person to whom the Share is sold or disposed of and
he shall thereupon be registered as the holder of the Share, and
shall not be bound to see to the application of the purchase
money, if any, nor shall his title to the Share be affected by
any irregularity or invalidity in the proceedings in reference to
the forfeiture, sale or disposal of the Share.
48. The provisions of these Articles as to forfeiture shall
apply in the case of non-payment of any sum which by the terms of
issue of a Share becomes payable at any time, whether on account
of the amount of the Share, or by way of premium, as if the same
had been payable by virtue of a call duly made and notified.
49. A person whose Shares have been forfeited shall cease to be
a Member in respect of the forfeited Shares, but shall,
notwithstanding, remain liable to pay to the Company all moneys
which at the date of forfeiture were payable by him to the
Company in respect of the Shares, but his liability shall cease
if and when the Company receives payment in full of the fully
paid up amount of the Shares.
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ALTERATION OF CAPITAL
---------------------
50. The Company may from time to time by Ordinary Resolution
increase the share capital by such sum, to be divided into Shares
of such classes and amount, as the resolution shall prescribe.
51. The Company may by Ordinary Resolution:-
51.1 consolidate and divide all or any of its share capital into
Shares of larger amount than its existing Shares;
51.2 subdivide its existing Shares, or any of them into Shares of
a smaller amount provided that in the subdivision the proportion
between the amount paid and the amount, if any, unpaid on each
reduced Share shall be the same as it was in the case of the
Share from which the reduced Share is derived;
51.3 cancel any Shares which, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any
person and diminish the amount of its share capital by the amount
of the Shares so cancelled; and
51.4 convert all or any of its paid up Shares into stock and
reconvert that stock into paid up Shares of any denomination.
52. The Company may by Special Resolution reduce its share
capital and any capital redemption reserve in any manner
authorized by the Companies Law.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
-------------------------------------------------
53. For the purpose of determining those Members that are
entitled to receive notice of, attend or vote at any meeting of
Members or any adjournment thereof, or those Members that are
entitled to receive payment of any dividend, or in order to make
a determination as to who is a Member for any other purpose, the
Directors may provide that the Register of Members shall be
closed for transfers for a stated period but not to exceed in any
case 40 days. If the Register of Members shall be so closed for
the purpose of determining those Members that are entitled to
receive notice of, attend or vote at a meeting of Members such
register shall be so closed for not more than 10 days immediately
preceding such meeting and the record date for such determination
shall be the first date of the closure of the Register of
Members.
54. In lieu of or apart from closing the Register of Members,
the Directors may fix in advance a date as the record date for
any such determination of those Members that are entitled to
receive notice of, attend or vote at a meeting of the Members and
for the purpose of determining those Members that are entitled to
receive payment of any dividend the Directors may, at or within
90 days prior to the date of declaration of such dividend fix a
subsequent date as the record date for such determination.
55. If the Register of Members is not so closed and no record
date is fixed for the determination of those Members that are
entitled to receive notice of, attend or vote at a meeting of
Members or those Members that are entitled to receive payment of
a dividend, the date on which notice of the meeting is posted or
the date on which the resolution of the Directors declaring such
dividend is adopted, as the case may be, shall be the record date
for such determination of Members. When a determination of those
Members that are entitled to receive notice of, attend or vote at
a meeting of Members has been made as provided in this section,
such determination shall apply to any adjournment thereof.
9
GENERAL MEETINGS OF MEMBERS
---------------------------
56. The Directors may, whenever they think fit, convene a
general meeting of the Company.
57. The Directors shall convene a general meeting of the Company
on the written requisition of any Member or Members entitled to
attend and vote at general meetings of the Company who hold(s)
not less than 10 per cent of the paid up voting share capital of
the Company, such requisition to be deposited at the Registered
Office.
58. The Members' requisition shall specify the objects of the
meeting and shall be signed by the requisitionists. If the
Directors do not convene a requisitioned meeting within 21 days
of the deposit of the requisition (such meeting to be convened no
less than 30 days from the date of deposit of the requisition),
the requisitionists themselves may convene the general meeting in
the same manner, as nearly as possible, as that in which meetings
may be convened by the Directors, and all reasonable expenses
incurred by the requisitionists as a result of the failure of the
Directors to convene the general meeting shall be reimbursed to
them by the Company.
59. If at any time there are no Directors of the Company, any
two Members (or if there is only one Member then that Member)
entitled to vote at general meetings of the Company may convene a
general meeting in the same manner as nearly as possible as that
in which meetings may be convened by the Directors.
NOTICE OF GENERAL MEETINGS
--------------------------
60. At least ACTION days' notice (excluding the day that notice
is deemed to be given and the day the meeting is to be held)
shall be given of an annual general meeting or any other general
meeting. Notice shall be given in the manner hereinafter
provided or in such other manner (if any) as may be prescribed by
the Company by Ordinary Resolution to such persons as are, under
these Articles, entitled to receive such notices from the Company
and shall specify the place, the day and the hour of the meeting
and, in case of special business, the general nature of that
business.
61. With the consent of all the Members entitled to receive
notice of some particular meeting and attend and vote thereat, a
meeting may be convened by such shorter notice or without notice
and in such manner as those Members may think fit.
62. The accidental omission to give notice of a meeting to or
the non-receipt of a notice of a meeting by any Member shall not
invalidate the proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
-------------------------------
63. No business shall be transacted at any general meeting
unless a quorum of Members is present at the time when the
meeting proceeds to business. Save as otherwise provided by
these Articles, one or more Members holding at least a majority
of the paid up voting share capital of the Company present in
person or by proxy shall be a quorum.
64. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting, if convened upon
the requisition of Members, shall be dissolved. In any other
case it shall stand adjourned to the same day in the next week,
at the same time and place, and if at the adjourned meeting a
quorum is not present within half an hour from the time appointed
for the meeting the Member or Members present and entitled to
vote shall be a quorum.
10
65. The chairman, if any, of the Board of Directors shall
preside as chairman at every general meeting of the Company.
66. If there is no such chairman, or if at any meeting he is not
present within fifteen minutes after the time appointed for
holding the meeting or is unwilling to act as chairman, the
Members present shall choose one of their number to be chairman.
67. The chairman may with the consent of any meeting at which a
quorum is present (and shall if so directed by the meeting)
adjourn a 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. When a meeting is adjourned for 10 days
or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. Save as aforesaid it shall not be
necessary to give any notice of an adjournment or of the business
to be transacted at an adjourned meeting.
68. All business carried out at a general meeting shall be
deemed special with the exception of sanctioning a dividend, the
consideration of the accounts, balance sheets, and financial
report of the Directors and the Company's auditors, and the
appointment and removal of Directors and the fixing of the
remuneration of the Company's auditors. No special business
shall be transacted at any general meeting without the consent of
all Members entitled to receive notice of that meeting unless
notice of such special business has been given in the notice
convening that meeting.
VOTES OF MEMBERS
----------------
69. Subject to any rights and restrictions for the time being
attached to any class or classes of Shares, on a show of hands
every Member present in person and every person representing a
Member by proxy shall at a general meeting of the Company have
one vote and on a poll every Member and every person representing
a Member by proxy shall have one vote for each Share of which he
or the person represented by proxy is the holder.
70. At any general meeting a resolution put to the vote of the
meeting shall be decided on a show of hands, unless a poll is
(before or on the declaration of the result of the show of hands)
demanded by one or more Members present in person or by proxy
entitled to vote and who together hold not less than 10 per cent
of the paid up voting share capital of the Company, and unless a
poll is so demanded, a declaration by the chairman that a
resolution has, on a show of hands, been carried, or carried
unanimously, or by a particular majority, or lost, and an entry
to that effect in the book of the proceedings of the Company,
shall be conclusive evidence of the fact, without proof of the
number or proportion of the votes recorded in favour of, or
against, that resolution.
71. If a poll is duly demanded it shall be taken in such manner
as the chairman directs, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded.
72. In the case of an equality of votes, whether on a show of
hands or on a poll, the chairman of the meeting at which the show
of hands takes place or at which the poll is demanded, shall be
entitled to a second or casting vote.
73. A poll demanded on the election of a chairman or on a
question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken at such time as the
chairman of the meeting directs.
74. In the case of joint holders the vote of the senior who
tenders a vote whether in person or by proxy, shall be accepted
to the exclusion of the votes of the joint holders and for this
purpose seniority shall be determined by the order in which the
names stand in the Register of Members.
11
75. A Member of unsound mind, or in respect of whom an order has
been made by any court having jurisdiction in lunacy, may vote,
whether on a show of hands or on a poll, by his committee, or
other person in the nature of a committee appointed by that
court, and any such committee or other person, may on a poll,
vote by proxy.
76. No Member shall be entitled to vote at any general meeting
unless all calls or other sums presently payable by him in
respect of Shares in the Company held by him and carrying the
right to vote have been paid.
77. On a poll votes may be given either personally or by proxy.
78. A resolution in writing signed by all the Members for the
time being entitled to receive notice of and to attend and vote
at general meetings (or being companies by their duly authorized
representatives) shall be as valid and effective as if the same
had been passed at a general meeting of the Company duly convened
and held.
MEMBERS' PROXIES
----------------
79. The instrument appointing a proxy shall be in writing under
the hand of the appointor or of his attorney duly authorized in
writing or, if the appointor is a corporation, either under seal
or under the hand of an officer or attorney duly authorized. A
proxy need not be a Member of the Company.
80. The instrument appointing a proxy shall be deposited at the
Registered Office or at such other place as is specified for that
purpose in the notice convening the meeting no later than the
time for which the meeting or adjourned meeting is scheduled
PROVIDED THAT the chairman of the meeting may at his discretion
direct that an instrument of proxy shall be deemed to have been
duly deposited upon receipt by confirmation from the appointor
that the instrument of proxy duly signed is in the course of
transmission to the Company.
81. An instrument appointing a proxy may be in any usual or
common form or such other form as the Directors may approve.
82. A vote given in accordance with the terms of an instrument
of proxy shall be valid notwithstanding the previous death or
insanity of the principal or revocation of proxy or of the
authority under which the proxy was executed, or the transfer of
the Share in respect of which the proxy is given provided that no
intimation in writing of such death, insanity, revocation or
transfer as aforesaid shall have been received by the Company at
the Registered Office before the commencement of the general
meeting, or adjourned meeting at which it is sought to use the
proxy.
83. The instrument appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll.
COMPANIES ACTING BY REPRESENTATIVES AT MEETINGS
-----------------------------------------------
84. Any company which is a Member or a Director 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 or of the Board
of Directors or of a committee of Directors, and the person so
authorized shall be entitled to exercise the same powers on
behalf of such company which he represents as that company could
exercise if it were an individual Member or Director.
12
APPOINTMENT OF DIRECTORS
------------------------
85. The first Director(s) shall be appointed at a meeting or by
written resolution of the subscribers to the Memorandum of
Association.
86. The Company may by Ordinary Resolution appoint any person to
be a Director.
87. Subject to the provisions of these Articles, a Director
shall hold office until such time as he is removed from office by
the Company by Ordinary Resolution.
88. The Company may by Ordinary Resolution from time to time fix
the maximum and minimum number of Directors to be appointed but
unless such number is fixed as aforesaid the minimum number of
Directors shall be one and the maximum number of Directors shall
be unlimited.
89. The remuneration of the Directors from time to time shall be
determined by the Company by Ordinary Resolution.
90. The shareholding qualification for Directors may be fixed by
the Company by Ordinary Resolution and unless and until so fixed
no Share qualification shall be required.
91. The Directors shall have power at any time and from time to
time to appoint a person as Director, either as a result of a
casual vacancy or as an additional Director, subject to the
maximum number (if any) imposed by the Company by Ordinary
Resolution.
ALTERNATE DIRECTORS
-------------------
92. Any Director may in writing appoint another person to be his
alternate to act in his place at any meeting of the Directors at
which he is unable to be present and may at any time in writing
revoke the appointment of an alternate appointed by him. Every
such alternate shall be entitled to notice of meetings of the
Directors and to attend and vote thereat as a Director when the
person appointing him is not personally present and to do in the
place and stead of his appointor, any other act or thing which
the appointor is permitted or required to do by virtue of his
being a Director as if the alternate were the appointor, other
than the appointment of an alternate himself. Where the
alternate is a Director he shall have a separate vote on behalf
of the Director he is representing in addition to his own vote.
93. An alternate shall not be an officer of the Company and
shall be deemed to be the agent of the Director appointing him
and the remuneration of such alternate (if any) shall be payable
out of the remuneration of the Director appointing him and the
proportion thereof shall be agreed between them.
94. The alternate shall ipso facto vacate office if and when his
appointor ceases to be a Director or removes the appointee from
office.
95. Any Director may appoint any person, whether or not a
Director, to be the proxy of that Director to attend and vote on
his behalf, in accordance with instructions given by that
Director, or in the absence of such instructions at the
discretion of the proxy, at a meeting or meetings of the
Directors which that Director is unable to attend personally.
The instrument appointing the proxy shall be in writing under the
hand of the appointing Director and shall be in any usual or
common form or such other form as the Directors may approve, and
must be lodged with the chairman of the meeting of the Directors
at which such proxy is to be used, or first used, prior to the
commencement of the meeting.
13
POWERS AND DUTIES OF DIRECTORS
------------------------------
96. Subject to the provisions of the Companies Law, these
Articles and to any resolutions made by the Company in general
meeting, the business of the Company shall be managed by the
Directors, who may pay all expenses incurred in setting up and
registering the Company and may exercise all powers of the
Company. No resolution made by the Company in general meeting
shall invalidate any prior act of the Directors which would have
been valid if that resolution had not been made.
97. The Directors may from time to time and at any time by power
of attorney appoint any company, firm or person or body of
persons, whether nominated directly or indirectly by the
Directors, to be the attorney or attorneys of the Company for
such purposes and with such powers, authorities and discretion
(not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such
conditions as they may think fit, and any such power of attorney
may contain such provisions for the protection and convenience of
persons dealing with any such attorney as the Directors may think
fit, and may also authorize any such attorney to delegate all or
any of the powers, authorities and discretion vested in him.
BORROWING POWERS OF DIRECTORS
-----------------------------
98. The Directors may exercise all the powers of the Company to
borrow money and to mortgage or charge its undertaking, property
and uncalled capital or any part thereof, 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.
APPOINTMENT OF OFFICERS
-----------------------
99. The Directors may from time to time appoint any person,
whether or not a director of the Company to hold such office in
the Company as the Directors may think necessary for the
administration of the Company, including without prejudice to the
foregoing generality, the office of president, one or more vice-
presidents, treasurer, assistant treasurer, manager or
controller, and for such term and at such remuneration (whether
by way of salary or commission or participation in profits or
partly in one way and partly in another), and with such powers
and duties as the Directors may think fit. The Directors may
also appoint one or more of their number to the office of
managing director upon like terms, but any such appointment shall
ipso facto determine if any managing director ceases from any
cause to be a Director, or if the Company by Ordinary Resolution
resolves that his tenure of office be terminated.
100. The Directors may appoint a secretary or secretaries of the
Company (and if need be an assistant secretary or assistant
secretaries) who shall hold office for such term, at such
remuneration and upon such conditions and with such powers as
they think fit.
101. Any person appointed by the Directors pursuant to Articles
99 and 100 may be removed by the Directors.
COMMITTEES OF DIRECTORS
-----------------------
102. The Directors may from time to time and at any time
establish any committees, local boards or agencies for managing
any of the affairs of the Company and may appoint any persons to
be members of such committees or local boards and may appoint any
managers or agents of the Company and may fix the remuneration of
any of the aforesaid.
14
103. The Directors may delegate any of their powers to committees
and any committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may be imposed on it
by the Directors.
104. The Directors may from time to time provide for the
management of the affairs of the Company in such manner as they
shall think fit and the provisions contained in the three next
following paragraphs shall be without prejudice to the general
powers conferred by this paragraph.
105. The Directors may from time to time and at any time delegate
to any committee, local board, manager or agent any of the
powers, authorities and discretions for the time being vested in
the Directors and may authorize the members for the time being of
any such local board, or any of them, to fill up any vacancies
therein and to act notwithstanding vacancies and any such
appointment or delegation may be made on such terms and subject
to such conditions as the Directors may think fit and the
Directors may at any time remove any person so appointed and may
annul or vary any such delegation, but no person dealing in good
faith and without notice of any such annulment or variation shall
be affected thereby.
106. Any such delegates as aforesaid may be authorized by the
Directors to sub-delegate all or any of the powers, authorities,
and discretion for the time being vested in them.
107. A committee appointed by the Directors may elect a chairman
of its meetings. If no such chairman is elected, or if at any
meeting the chairman is not present within five minutes after the
time appointed for holding the same, the members present may
choose one of their number to be chairman of the meeting.
108. A committee appointed by the Directors may meet and adjourn
as it thinks proper. Questions arising at any meeting shall be
determined by a majority of votes of the committee members
present and in case of an equality of votes the chairman shall
have a second or casting vote.
PROCEEDINGS OF DIRECTORS
------------------------
109. The Directors may meet together (either within or without
the Cayman Islands) for the despatch of business, adjourn, and
otherwise regulate their meetings and proceedings as they think
fit. A Director or a Director's duly appointed alternate may, at
any time, and any secretary or assistant secretary shall on the
requisition of a Director summon a meeting of the Directors.
110. The quorum necessary for the transaction of the business of
the Directors may be fixed by the Directors, and unless so fixed,
if there be two or more Directors shall be two, and if there be
less than two Directors shall be one. A Director represented by
proxy or by duly appointed alternate at any meeting shall be
deemed to be present for the purposes of determining whether or
not a quorum is present.
111. The Directors may elect a chairman of their meetings and
determine the period for which he is to hold office but if no
such chairman is elected, or if at any meeting the chairman is
not present within fifteen minutes after the time appointed for
holding the same, the Directors present may choose one of their
number to be chairman of the meeting.
112. Questions arising at any meeting shall be decided by a
majority of votes of the Directors and duly appointed alternates
present, the vote of an alternate not being counted if his
appointor is also present at such meeting. In the case of an
equality of votes the chairman shall have a second or casting
vote.
15
113. A Director or Directors and any duly appointed alternates
may participate in any meeting of the Board of Directors, or of
any committee appointed by the Board of Directors of which such
Director or Directors are members, by means of telephone or
similar communication equipment by way of which all persons
participating in such meeting can hear each other and such
participation shall be deemed to constitute presence in person at
the meeting.
114. A Director who is in any way, whether directly or
indirectly, interested in a contract or proposed contract with
the Company shall declare the nature of his interest at a meeting
of the Directors. A general notice given to the Directors by any
Director to the effect that he is a member of any specified
company or firm and is to be regarded as interested in any
contract which may thereafter be made with that company or firm
shall be deemed a sufficient declaration of interest in regard to
any contract so made. A Director may vote in respect of any
contract or proposed contract or arrangement notwithstanding that
he may be interested therein and if he does so his vote shall be
counted and he may be counted in the quorum at any meeting of the
Directors at which any such contract or proposed contract or
arrangement shall come before the meeting for consideration.
115. A Director may hold any other office or place of profit
under the Company (other than the office of auditor) in
conjunction with his office of Director for such period and on
such terms (as to remuneration and otherwise) as the Directors
may determine and no Director or intending Director shall be
disqualified by his office from contracting with the Company
either with regard to his tenure of any such other office or
place of profit or as vendor, purchaser or otherwise, nor shall
any such contract or arrangement entered into by or on behalf of
the Company in which any Director is in any way interested, be
liable to be avoided, nor shall any Director so contracting or
being so interested be liable to account to the Company for any
profit realized by any such contract or arrangement by reason of
such Director holding that office or of the fiduciary relation
thereby established. A Director, notwithstanding his interest,
may be counted in the quorum present at any meeting whereat he or
any other Director is appointed to hold any such office or place
of profit under the Company or whereat the terms of any such
appointment are arranged and he may vote on any such appointment
or arrangement.
116. Any Director may act by himself or his firm in a
professional capacity for the Company, and he or his firm shall
be entitled to remuneration for professional services as if he
were not a Director; provided that nothing herein contained shall
authorize a Director or his firm to act as auditor to the
Company.
117. The Directors shall cause minutes to be made for the purpose
of recording:-
117.1 all appointments of officers made by the Directors;
117.2 the names of the Directors present at each meeting of
the Directors and of any committee of the Directors; and
117.3 all resolutions and proceedings at all meetings of the
Company, and of the Directors and of committees of Directors.
118. When the chairman of a meeting of the Directors signs the
minutes of such meeting the same shall be deemed to have been
duly held notwithstanding that all the Directors have not
actually come together or that there may have been a technical
defect in the proceedings.
119. A resolution signed by all the Directors (in one or more
counterparts) shall be as valid and effectual as if it had been
passed at a meeting of the Directors duly called and constituted.
When signed a resolution may consist of several documents each
signed by one or more of the Directors.
120. The continuing Directors may act notwithstanding any vacancy
in their body but if and so long as their number is reduced below
the number fixed by or pursuant to the Articles of the Company as
the necessary quorum of Directors, the continuing Directors may
act for the purpose of increasing the number, or of summoning a
general meeting of the Company, but for no other purpose.
16
121. All acts done by any meeting of the Directors or of a
committee of Directors, or by any person acting as a Director,
shall notwithstanding that it be afterwards discovered that there
was some defect in the appointment of any such Director or person
acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
DISQUALIFICATION OF DIRECTORS
-----------------------------
122. The office of Director shall be automatically vacated, if
the Director:-
122.1 dies;
122.2 resigns his office by notice in writing to the Company;
122.3 becomes bankrupt or makes any arrangement or
composition with his creditors;
122.4 is found to be or becomes of unsound mind;
122.5 is removed from office by a vote of a majority of the
Directors; or
122.6 is removed from office by Ordinary Resolution.
DIVIDENDS
---------
123. Subject to any rights and restrictions for the time being
attached to any class or classes of Shares, the Directors may
from time to time declare interim dividends on Shares of the
Company in issue and authorize payment of the same out of the
funds of the Company lawfully available therefor.
124. Subject to any rights and restrictions for the time being
attached to any class or classes of Shares, the Company may by
Ordinary Resolution declare final dividends, but no dividend
shall exceed the amount recommended by the Directors.
125. The Directors may, before recommending or declaring any
dividend, set aside out of the funds legally available for
distribution such sums as they think proper as a reserve or
reserves which shall, in the absolute discretion of the Directors
be applicable for meeting contingencies, or for equalizing
dividends or for any other purpose to which those funds may be
properly applied and may pending such application, in the
Directors' absolute discretion, either be employed in the
business of the Company or be invested in such investments (other
than Shares of the Company) as the Directors may from time to
time think fit.
126. Any dividend may be paid by cheque or warrant sent through
the post to the registered address of the Member or person
entitled thereto, or in the case of joint holders, to any one of
such joint holders at his registered address or to such person
and such address as the Member or person entitled, or such joint
holders as the case may be, may direct. Every such cheque or
warrant shall be made payable to the order of the person to whom
it is sent or to the order of such other person as the Member or
person entitled, or such joint holders as the case may be, may
direct.
17
127. The Directors may when paying dividends to the Members in
accordance with the foregoing provisions, make such payment
either in cash or in specie.
128. No dividend shall be paid otherwise than out of profits or,
subject to the restrictions of the Companies Law, the share
premium account.
129. Subject to the rights of persons, if any, entitled to Shares
with special rights as to dividends, all dividends shall be
declared and paid according to the amounts paid on the Shares,
but if and so long as nothing is paid up on any of the Shares in
the Company dividends may be declared and paid according to the
amounts of the Shares. No amount paid on a Share in advance of
calls shall, while carrying interest, be treated for the purposes
of this Article as paid on the Share.
130. If several persons are registered as joint holders of any
Share, any of them may give effectual receipts for any dividend
or other moneys payable on or in respect of the Share.
131. No dividend shall bear interest against the Company.
FINANCIAL YEAR
--------------
132. Unless the Directors otherwise resolve, the financial year
end of the Company shall be 31st December in each year and
following the year of incorporation shall begin on 1st January of
each year.
ACCOUNTS AND AUDIT
------------------
133. The Directors shall cause books of account relating to the
Company's affairs to be kept in such manner as may be determined
from time to time by the Directors.
134. The books of account shall be kept at the Registered Office,
or at such other place or places as the Directors think fit, and
shall always be open to the inspection of the Directors.
135. The Directors shall from time to time determine whether and
to what extent and at what times and places and under what
conditions or regulations the accounts and books of the Company
or any of them shall be open to the inspection of Members not
being Directors, and no Member (not being a Director) shall have
any right of inspecting any account or book or document of the
Company except as conferred by law or authorized by the Directors
or by the Company by Ordinary Resolution.
136. The accounts relating to the Company's affairs shall be
audited in such manner as may be determined from time to time by
the Company by Ordinary Resolution or, failing any such
determination, by the Directors or, failing any determination as
aforesaid, shall not be audited.
137. The auditors, if any, shall be appointed by the Directors
and shall hold office until removed by Ordinary Resolution or by
resolution of the Directors.
138. The remuneration of any auditors, if any, appointed by the
Directors, may be fixed by the Directors.
CAPITALIZATION OF PROFITS
-------------------------
139. Subject to the Companies Law, the Directors may, with the
authority of an Ordinary Resolution:
18
139.1 resolve to capitalize an amount standing to the credit
of reserves (including a share premium account, capital
redemption reserve and profit and loss account), or otherwise
available for distribution;
139.2 appropriate the sum resolved to be capitalized to the
Members in proportion to the nominal amount of Shares (whether or
not fully paid) held by them respectively and apply that sum on
their behalf in or towards:-
139.2.1 paying up the amounts (if any) for the time being
unpaid on Shares held by them respectively, or
139.2.2 paying up in full unissued Shares or debentures of a
nominal amount equal to that sum,
and allot the Shares or debentures, credited as fully
paid, to the Members (or as they may direct) in those
proportions, or partly in one way and partly in the
other;
139.3 make any arrangements they think fit to resolve a
difficulty arising in the distribution of a capitalized reserve
and in particular, without limitation, where Shares or debentures
become distributable in fractions Directors may deal with the
fractions as they think fit;
139.4 generally do all acts and things required to give
effect to the resolution.
SHARE PREMIUM ACCOUNT
---------------------
140. The Directors shall in accordance with section 34 of the
Companies Law establish a share premium account and shall carry
to the credit of such account from time to time a sum equal to
the amount or value of the premium paid on the issue of any
Share.
141. There shall be debited to any share premium account on the
redemption or purchase of a Share the difference between the
nominal value of such Share and the redemption or purchase price
provided always that at the discretion of the Directors such sum
may be paid out of the profits of the Company or, if permitted by
section 37 of the Companies Law, out of capital.
NOTICES
-------
142. Notices shall be in writing and may be given by the Company
or by the person entitled to give notice to any Member either
personally, by facsimile or by sending it through the post in a
prepaid letter or via a recognized courier service, fees prepaid,
addressed to the Member at his address as appearing in the
Register of Members. In the case of joint holders of a Share,
all notices shall be given to that one of the joint holders whose
name stands first in the Register of Members in respect of the
joint holding, and notice so given shall be sufficient notice to
all the joint holders.
143. Where notice or other documents are sent by:-
143.1 post, notice shall be deemed to have been served five
days after the time when the letter containing the same is posted
and if sent by courier, shall be deemed to have been served five
days after the time when the letter containing the same is
delivered to the courier (in proving such service it shall be
sufficient to prove that the letter containing the notice or
document was properly addressed and duly posted or delivered to
the courier); or
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143.2 facsimile, notice shall be deemed to have been served
upon confirmation of receipt.
144. Any Member present, either personally or by proxy, at any
meeting of the Company shall for all purposes be deemed to have
received due notice of such meeting and, where requisite, of the
purposes for which such meeting was convened.
145. Any notice or document delivered or sent by post to or left
at the registered address of any Member in accordance with the
terms of these Articles shall notwithstanding that such Member be
then dead or bankrupt, and whether or not the Company has notice
of his death or bankruptcy, be deemed to have been duly served in
respect of any Share registered in the name of such Member as
sole or joint holder, unless his name shall at the time of the
service of the notice or document, have been removed from the
Register of Members as the holder of the Share, and such service
shall for all purposes be deemed a sufficient service of such
notice or document on all persons interested (whether jointly
with or as claiming through or under him) in the Share.
146. Notice of every general meeting shall be given in the manner
hereinbefore authorized to:-
146.1 all Members who have a right to receive notice and who
have supplied the Company with an address for the giving of
notices to them and in the case of joint holders, the notice
shall be sufficient if given to the first named joint holder in
the Register of Members; and
146.2 every person entitled to a Share in consequence of the
death or bankruptcy of a Member, who but for his death or
bankruptcy would be entitled to receive notice of the meeting.
No other person shall be entitled to receive notice of
general meetings.
THE SEAL
--------
147. The Company shall not have a Seal unless otherwise resolved
by the Directors. Any such Seal shall not be affixed to any
instrument except by the authority of a resolution of the Board
of Directors or of a committee of directors authorized by the
Directors in that behalf provided always that such authority may
be given prior to or after the affixing of the Seal and if given
after may be in general form confirming a number of affixings of
the Seal. Every instrument to which the Seal is affixed shall be
signed by a Director of the Company or by any one or more persons
as the Directors may appoint for that purpose.
148. The Company may maintain a duplicate or duplicates of the
Seal but such duplicate(s) shall not be affixed to any instrument
except by the authority of a resolution of the Board of Directors
provided always that such authority may be given prior to or
after the affixing of such duplicate and if given after may be in
general form confirming a number of affixings of such duplicate.
Every instrument to which a duplicate of the Seal is affixed
shall be signed by a Director of the Company or by any one or
more persons as the Directors may appoint for that purpose and
such affixing of a duplicate of the Seal and signing as aforesaid
shall have the same meaning and effect as if the Seal had been
affixed and the instrument signed by a Director of the Company.
149. Notwithstanding the foregoing, a director or officer,
representative or attorney of the Company shall have the
authority to affix the Seal, or a duplicate of the Seal, over his
signature alone on any instrument or document required to be
authenticated by him under seal or to be filed with the Registrar
of Companies in the Cayman Islands or elsewhere wheresoever.
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INDEMNITY
---------
150. Every Director (including for the purposes of this Article
any alternate appointed pursuant to the provisions of these
Articles), managing director, agent, secretary, assistant
secretary or other officer for the time being and from time to
time of the Company (but not including the Company's auditor) and
the personal representatives of the same shall be indemnified and
secured harmless out of the assets and funds of the Company
against all actions, proceedings, costs, charges, expenses,
losses, damages or liabilities incurred or sustained by him in or
about the conduct of the Company's business or affairs or in the
execution or discharge of his duties, powers, authorities or
discretions, including without prejudice to the generality of the
foregoing, any costs, expenses, losses or liabilities incurred by
him in defending (whether successfully or otherwise) any civil
proceedings concerning the Company or its affairs in any court
whether in the Cayman Islands or elsewhere.
151. No such Director, duly appointed alternate, managing
director, agent, secretary, assistant secretary or other officer
of the Company (but not including the Company's auditor) shall be
liable (i) for the acts, receipts, neglects, defaults or
omissions of any other such Director or officer or agent of the
Company or (ii) by reason of his having joined in any receipt for
money not received by him personally or (iii) for any loss on
account of defect of title to any property of the Company or (iv)
on account of the insufficiency of any security in or upon which
any money of the Company shall be invested or (v) for any loss
incurred through any bank, broker or other agent or (vi) for any
loss occasioned by any negligence, default, breach of duty,
breach of trust, error of judgment or oversight on his part or
(vii) for any loss, damage or misfortune whatsoever which may
happen in or arise from the execution or discharge of the duties,
powers, authorities, or discretions of his office or in relation
thereto, unless the same shall happen through his own dishonesty.
NON-RECOGNITION OF TRUSTS
-------------------------
152. No person shall be recognized by the Company as holding any
Share upon any trust and the Company shall not, unless required
by law, be bound by or be compelled in any way to recognize (even
when having notice thereof) any equitable, contingent, future or
partial interest in any of its Shares (or fraction thereof) or
any other rights in respect thereof except an absolute right to
the entirety thereof in each Member registered in the Register of
Members.
WINDING UP
----------
153. If the Company shall be wound up the liquidator may, with
the sanction of an Ordinary Resolution and any other sanction
required by the Companies Law, divide amongst the Members in
specie or cash the whole or any part of the assets of the Company
(whether they shall consist of property of the same kind or not)
and may, for such purpose set such value as he deems fair upon
any property to be divided as aforesaid and may determine how
such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like
sanction, vest the whole or any part of such assets in trustees
upon such trusts for the benefit of the contributors as the
liquidator shall think fit, but so that no Member shall be
compelled to accept any Shares or other securities whereon there
is any liability.
154. Without prejudice to the rights of holders of Shares issued
upon special terms and conditions, if the Company shall be wound
up, and the assets available for distribution among the Members
as such shall be insufficient to repay the whole of the paid-up
capital, such assets shall be distributed so that, as nearly as
may be, the losses shall be borne by the Members in proportion to
the capital paid-up, or which ought to have been paid-up, at the
commencement of the winding up on the Shares held by them
respectively. If on a winding up the assets available for
distribution among the Members shall be more than sufficient to
repay the whole of the capital paid-up at the commencement of the
winding up, the excess shall be distributed among the Members in
proportion to the capital paid up at the commencement of the
winding up on the Shares held by them respectively.
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AMENDMENT OF MEMORANDUM OF ASSOCIATION
--------------------------------------
155. Subject to and insofar as permitted by the Companies Law,
the Company may at any time and from time to time by Special
Resolution alter or amend its Memorandum of Association with
respect to any objects, powers or other matters specified
therein.
AMENDMENT OF ARTICLES OF ASSOCIATION
------------------------------------
156. Subject to the Companies Law and the rights attaching to the
various classes of Shares, the Company may at any time and from
time to time by Special Resolution alter or amend these Articles
in whole or in part.
REGISTRATION BY WAY OF CONTINUATION
-----------------------------------
157. The company may by Special Resolution resolve to be
registered by way of continuation as a body corporate under the
laws of any jurisdiction outside the Cayman Islands. The
Directors may make application to the Registrar of Companies to
deregister the Company in the Cayman Islands and may take all
such further steps as they consider appropriate to be taken, in
accordance with the Companies Law, to effect the transfer by way
of continuation of the Company.
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THE COMPANIES LAW (2007 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
PAN ASIAN CORPORATION
(Adopted by special resolution on 1 MARCH 2008)
[LOGO]
STUARTS
WALKER HERSANT
--------------------
ATTORNEYS-AT-LAW
Cayman Financial Centre
36A DR. ROY'S DRIVE
P.O. Box 2510
Grand Cayman KY1-1104
Cayman Islands
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