Exhibit 3.2(b)
THE COMPANIES LAW (2000 REVISION)
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COMPANY LIMITED BY SHARES
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AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
SEAGATE TECHNOLOGY HOLDINGS
Amended and Restated by Special Resolution of the Sole Shareholder
dated July 2, 2001
INTERPRETATION
1. In these Articles Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context inconsistent
therewith,
"Articles" means these Articles as originally framed
or as from time to time altered by Special
Resolution.
"Auditors" means the persons for the time being
performing the duties of auditors of the
Company.
"Board" means the board of directors of the
Company.
"Common Shares" has the meaning given in theCompany's
Memorandum of Association.
"Company" means the above-named Company.
"debenture" means debenture stock, mortgages, bonds and
any other such securities of the Company
whether constituting a charge on the assets
of the Company or not.
"Directors" means the directors for the time being of
the Company.
"dividend" includes bonus.
"Extraordinary Distribution" means any distribution to the holders of
the Preferred Shares of (i)
securities of any subsidiary of the
Company in a spin-off or spin-out
transaction or (ii) the proceeds from the
sale or other disposition of the assets or
outstanding capital stock of any such
subsidiary.
"Fair Market Value" means: (a) in the case of property other
than cash or securities, the market value
of such property on the date in question as
determined in good faith by the Board; and
(b) in the case of securities, the average
of the daily closing prices of the
securities for the ten consecutive trading
days ending on and including such date of
determination. The closing price for each
day shall be: (i) if the securities are
listed on the NASDAQ National Market, the
last reported sale price of such securities
on the NASDAQ National Market, or any
similar system of automated dissemination
of quotations of securities prices then in
common use, if so quoted, (ii) if the
securities are not listed or admitted for
trading as described in clause (i), the
last reported sale price of such securities
on the NYSE, or if such securities are
listed or admitted for trading on any other
national securities exchange, the last sale
price, or the closing bid price if no sale
occurred, of such securities on the
principal securities exchange on which the
securities are listed, or (iii) if not
quoted or listed as described in clauses
(i) or (ii), the mean between the high bid
and low asked quotations for such
securities as reported by the National
Quotation Bureau Incorporated if at least
two securities dealers have inserted both
bid and asked quotations for the securities
on at least five of the ten preceding
Trading Days. If none of the conditions set
forth above is met, the last reported sale
price of the securities on any day or the
average of such last reported sale prices
for any period shall be the fair market
value of the securities as determined by a
member firm of the NYSE selected by the
Company.
"IPO" means a firm commitment underwriting public
offering of the Common Shares pursuant to
an effective registration statement filed
under the U.S. Securities Act of 1933, as
amended, which yields the Company net
proceeds in an amount not less than $75
million.
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"Liquidation Event" means any liquidation, dissolution,or
winding up of the Company, whether
voluntary or involuntary. For purposes of
these Articles, (a) a consolidation or
merger of the Company with or into any
other company or any subsidiary thereof,
other than a merger or consolidation in
which securities representing more than 50%
of the total combined voting power of the
voting securities of the successor
corporation are immediately thereafter
beneficially owned, directly or indirectly
and in substantially the same proportion,
by the persons who beneficially owned the
Company's outstanding voting securities
immediately prior to such transaction; (b)
a sale of all, or substantially all, of the
assets of the Company or (c) a series of
transactions in which more than 50% of the
voting power of the Company is disposed of
shall be deemed to be within the purview of
a liquidation, dissolution, or winding up.
"Member" shall bear the meaning as ascribed to it in
the Statute.
"month" means calendar month.
"paid-up" means paid-up and/or credited as paid-up.
"Preferred Shares" has the meaning given in the Company's
Memorandum of Association.
"registered office" means the registered office for the
time being of the Company.
"Seal" means the common seal of the Company and
includes every duplicate seal.
"Secretary" includes an Assistant Secretary and any
person appointed to perform the duties of
Secretary of the Company.
"Series A Preferred Shares" has the meaning given in the Company's
Memorandum of Association.
"Series A Stated Amount" means US $2.30 per Series A Preferred
Share.
"Special Resolution" has the same meaning as in the Statute and
includes a
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resolution approved in writing as described
therein.
"Statute" means the Companies Law of the Cayman
Islands as amended and every statutory
modification or re-enactment thereof for
the time being in force.
"written" and "in writing" include all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa. Words importing the masculine gender only include the feminine
gender. Words importing persons only include corporations.
PRELIMINARY
2. The business of the Company may be commenced as soon after incorporation as
the Directors shall see fit, notwithstanding that part only of the shares
may have been allotted or issued.
3. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and establishment
of the Company including the expenses of registration.
SHARES
4. Except as otherwise provided in these Articles, all shares in the capital
of the Company for the time being and from time to time unissued shall be
under the control of the Board and may be re-designated, allotted, or
disposed of in such manner, to such persons, and on such terms as the
Board, in its discretion, may think fit.
COMMON SHARES
5. The holders of Common Shares shall be entitled to receive such dividends
and distributions as may be declared from time to time by the Board. Such
dividends and distributions shall be from such assets lawfully available
therefor as the Directors may determine and shall otherwise be paid and/or
made as provided in these Articles.
6. After payment in full of the Liquidation Preference (as such term is
defined below) to the holders of Preferred Shares who are entitled to such
Liquidation Preference pursuant to a resolution of the Board or pursuant to
these Articles (the "Eligible Preferred Shareholders"), any remaining
assets of the Company that are legally available for distribution, if any,
shall be distributed ratably among (a) any Eligible Preferred Shareholder
who (after having received the Liquidation Preference) has the right to
participate in such distribution pursuant to a written resolution of the
Board or pursuant to these Articles and (b) the holders of Common Shares on
a pro rata basis.
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7. Any dividend distributed other than in cash by the Company to the holders
of Common Shares pursuant to these Articles will be valued at the Fair
Market Value of the property being transferred as such dividend.
8. Each holder of Common Shares shall have one vote in respect of each Common
Share held by such holder at general meetings of the Company.
PREFERRED SHARES
9. The Preferred Shares may be issued from time to time in one or more series
pursuant to any resolution of the Board that provides for such issuance.
The Board may determine the rights, preferences, privileges, and
restrictions granted to, or imposed upon, any wholly unissued series of
Preferred Shares and fix the number of shares of any series of Preferred
Shares and the designation of any such series of Preferred Shares, in all
cases on or prior to the issue of Preferred Shares of such series. The
Board may increase or decrease (but not below the number of shares in any
such series then outstanding) the number of authorized shares of any series
subsequent to the issue of shares of that series. The authority of the
Board with respect to each such class or series shall include, without
limitation of the foregoing, the right to determine and fix (prior to
issue):
(a) the distinctive designation of such class or series and the number
of shares to constitute such class or series;
(b) the rate and frequency at which dividends on the shares of such
class or series shall be declared and paid, or set aside for
payment, whether dividends at the rate so determined shall be
cumulative or accruing, and whether the shares of such class or
series shall be entitled to any participating or other dividends in
addition to dividends at the rate so determined, and if so, on what
terms;
(c) the right or obligation, if any, of the Company to redeem shares of
the particular class or series of Preferred Shares and, if
redeemable, the price, terms, and manner of such redemption;
(d) the special and relative rights and preferences, if any, and the
amount per share that the shares of such class or series of
Preferred Shares shall be entitled to receive upon any Liquidation
Event;
(e) the terms and conditions, if any, whereby shares of such class or
series shall be convertible into, or exchangeable for, shares of
any other class or series, including the price or rate of
conversion or exchange and the terms of adjustment, if any (such
conversion or exchange to be by means of redemption and reissue of
shares of the other class or series);
(f) the obligation, if any, of the Company to redeem or purchase shares
of such class or series and the terms and conditions of such
obligation;
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(g) the voting rights, in any, on the issuance of additional shares of
such class or series or any shares of any other class or series of
Preferred Shares;
(h) the limitations, if any, on the issuance of additional shares of
such class or series or any shares of any other class or series of
Preferred Shares; and
(i) such other preferences, powers, qualifications, special or relative
rights, and privileges thereof as the Board, acting in accordance
with these Articles, may deem advisable and not inconsistent with
Cayman Islands law and the Statute.
SERIES A PREFERRED SHARES
10. The holders of Series A Preferred Shares shall be entitled to receive and
to participate in such dividends and distributions as may be declared from
time to time by the Board. Such dividends and distributions shall be paid
and/or made on a pari passu basis with dividends and distributions on or in
respect of Common Shares. Such dividends may be made in cash or specie as
the Directors determine.
11. Any dividend distributed other than in cash by the Company to the holders
of Series A Preferred Shares pursuant to these Articles (including the
Extraordinary Distributions) will be valued at the Fair Market Value of the
property being transferred as such dividend.
12. (a) Following any Liquidation Event, before any distribution or
payment shall be made to the holders of any Common Shares, the
holders of Series A Preferred Shares shall be entitled to be paid
out of the remaining assets of the Company that are legally
available for distribution with respect to all Series A Preferred
Shares then outstanding an amount in cash (to be shared ratably by
the holders of Series A Preferred Shares) equal to the excess of
(i) US $2.30 per Series A Preferred Share over (ii) the amount of
any Extraordinary Distributions previously paid per Series A
Preferred Share (the "Liquidation Preference").
(b) After payment in full of the Liquidation Preference to the Eligible
Preferred Shareholders, any remaining assets of the Company that
are legally available for distribution shall be further distributed
ratably among (i) the holders of Series A Preferred Shares, (ii)
the holders of Common Shares, and (iii) any Eligible Preferred
Shareholder (other than holders of Series A Preferred Shares) who
has the right to participate in such distribution pursuant to a
written resolution of the Board or pursuant to these Articles.
(c) If, upon any such Liquidation Event, the remaining assets of the
Company that are legally available for distribution to its
shareholders are insufficient to pay the holders of Series A
Preferred Shares the full Liquidation Preference on each Series A
Preferred Share, then the holders of Series A Preferred Shares
shall share ratably in any distribution of such remaining assets in
proportion to the respective amounts that would otherwise be
payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such
shares were paid in
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full.
(d) Subject to Articles 24 and 25, at any time when Series A Preferred
Shares are outstanding, without the written consent of the holders
of a majority of the then outstanding Series A Preferred Shares,
the Directors shall not create, or authorize the creation of, any
additional class or series of shares that ranks senior to the
Series A Preferred Shares with respect to the distribution of
assets upon any Liquidation Event.
13. The payment in full of the Liquidation Preference pursuant to Article 12(a)
hereof and all other distribution pursuant to Article 12(b) hereof on each
Series A Preferred Share shall automatically constitute the redemption in
full of that Series A Preferred Share. To the extent that Series A
Preferred Shares are redeemed in full, such Series A Preferred Shares shall
be cancelled, and the issued share capital of the Company shall be reduced
by the nominal value of the shares so redeemed. The redemption shall not be
taken as reducing the authorized share capital of the Company.
14. The holders of Series A Preferred Shares shall be entitled to vote upon any
and all matters upon which holders of Common Shares have the right to vote.
15. With respect to each Series A Preferred Share held by the holders thereof,
each such holder shall have a number of votes that is equal to the number
of Common Shares into which the Series A Preferred Shares could be
converted, and such votes shall be counted together with all other shares
(including the Common Shares) of the Company and not separately as a class.
16. The Series A Preferred Shares shall be convertible into Common Shares as
follows:
(a) Conversion Right
Any holder of Series A Preferred Shares shall have the right, at
such holder's option, at any time or from time to time, to convert
any of such holder's Series A Preferred Shares into such number of
Common Shares as is determined by (x) dividing the Series A Stated
Amount by the Conversion Price (defined below) in effect at the
time of the conversion and (y) multiplying such quotient by the
number of Series A Preferred Shares to be converted. The
"Conversion Price" shall initially be US $2.30 per share. Such
Conversion Price shall be subject to adjustment as hereinafter
provided.
(b) Mechanics of Conversion
Any holder of Series A Preferred Shares may exercise the conversion
right specified herein by surrendering to the Company the
certificate(s) for the Series A Preferred Shares to be converted,
accompanied by written notice specifying the number of the shares
to be converted.
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Conversion shall be deemed to have been effected on the date when
delivery of notice of an election to convert and certificates for
shares is made (such date is referred to herein as the "Conversion
Date").
Subject to the provisions of subparagraph (d)(v), as promptly as
practicable thereafter, the Company shall make appropriate
entries in the Register of Members, cancel the relevant Series A
Preferred Share certificates and issue and deliver to such holder
certificate(s) for the number of full Common Shares to which such
holder is entitled and a check or cash with respect to any
fractional interest in a Common Share as provided in subparagraph
(c).
The person whose name has been entered on the Register of Members
shall be the legal owner of the Common Shares on the applicable
Conversion Date.
Upon conversion of only a portion of the number of shares covered
by a certificate representing the Series A Preferred Shares
surrendered for conversion, the Company shall issue and deliver to
such holder, at the expense of the Company, a new certificate
covering the number of Series A Preferred Shares representing the
unconverted portion of the certificate so surrendered.
(c) Fractional Shares
No fractions of Common Shares shall be issued upon conversion of
the Series A Preferred Shares. If more than one Series A Preferred
Share shall be surrendered for conversion at any one time by the
same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate
number of Series A Preferred Shares so surrendered. Instead of any
fractions of Common Shares that would otherwise be issuable upon
conversion of any Series A Preferred Shares, the Company shall pay
a cash adjustment in respect of such fractional interest in an
amount equal to that fractional interest multiplied by the then
effective Conversion Price.
(d) Conversion Price Adjustments
The Conversion Price shall be subject to adjustment from time to
time as follows:
(i) Bonus Issue, Subdivision or Split
If the number of Common Shares outstanding at any time after
the date hereof is increased by a bonus issue of Common
Shares or by a subdivision of Common Shares, then, on the
date such issue or subdivision is made, the Conversion Price
shall be appropriately decreased so that the number of Common
Shares issuable on conversion of any Series A Preferred
Shares shall be increased in proportion to such increase of
outstanding shares.
(ii) Combination
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If the number of Common Shares outstanding at any time after
the date hereof is decreased by a combination of the
outstanding Common Shares, then, on the effective date of
such combination, the Conversion Price shall be appropriately
increased so that the number of Common Shares issuable on
conversion of any shares of Series A Preferred Shares shall
be decreased in proportion to such decrease in outstanding
shares.
(iii) Consolidation, Merger, Sale, Lease or Conveyance
In case of any consolidation with or merger of the Company
with or into another company, or in case of any sale, lease,
or conveyance to another company of the assets of the Company
as an entirety or substantially as an entirety, each Series A
Preferred Share shall after the date of such consolidation,
merger, sale, lease, or conveyance be convertible into the
number of shares or other securities or property (including
cash) to which the Common Shares issuable (at the time of
such consolidation, merger, sale, lease, or conveyance) upon
conversion of such Series A Preferred Share would have been
entitled upon such consolidation, merger, sale, lease, or
conveyance; and in any such case, if necessary, the
provisions set forth herein with respect to the rights and
interests thereafter of the holders of Series A Preferred
Shares shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares or
other securities or property thereafter deliverable on the
conversion of the Series A Preferred Shares.
(iv) Rounding of Calculations; Minimum Adjustment
All calculations under this subparagraph (d) shall be made to
the nearest cent (in U.S. currency) or to the nearest one
hundredth (1/100th) of a share, as the case may be.
(v) Timing of Issuance of Additional Common Shares Upon Certain
Adjustments
In any case in which the provisions of this subparagraph (d)
shall require that an adjustment shall become effective
immediately after a record date for an event, the Company may
defer until the occurrence of such event (A) issuing to the
holder of Series A Preferred Shares converted after such
record date and before the occurrence of such event the
additional Common Shares issuable upon such conversion by
reason of the adjustment required by such event over and
above the Common Shares issuable upon such conversion before
giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of a fractional share of
Common Share pursuant to subparagraph (c).
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(e) Automatic Conversion
Upon the closing of the IPO, each outstanding Series A Preferred
Share shall automatically be converted into one or more Common
Shares on the basis of the Conversion Price then in effect. Such
automatic conversion shall be effected in substantially the same
manner as set forth in subparagraph (b) of this Section 16, with
the closing of the IPO to automatically constitute the Conversion
Date.
CERTIFICATES FOR SHARES
17. Certificates representing shares of the Company shall be in such form as
shall be determined by the Directors. Such certificates may be under Seal.
All certificates for shares shall be consecutively numbered or otherwise
identified and shall specify the shares to which they relate. The name and
address of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered in the
register of Members of the Company. All certificates surrendered to the
Company for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and cancelled. The Directors may authorise certificates to
be issued with the seal and authorised signature(s) affixed by some method
or system of mechanical process.
18. Notwithstanding Article 17 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on payment of a fee of one
dollar (US$l.00) or such less sum and on such terms (if any) as to evidence
and indemnity and the payment of the expenses incurred by the Company in
investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
19. Subject to the provisions, if any, in that behalf hereinbefore contained or
in the Memorandum of Association and without prejudice to any special
rights previously conferred on the holders of existing shares, the
Directors may allot, issue, grant options over or otherwise dispose of
shares of the Company (including fractions of a share) with or without
preferred, deferred or other special rights or restrictions, whether in
regard to dividend, voting, return of capital or otherwise and to such
persons, at such times and on such other terms as they think proper.
20. The Company shall maintain a register of its Members and every person whose
name is entered as a Member in the register of Members shall be entitled
without payment to receive within two months after allotment or lodgement
of transfer (or within such other period as the conditions of issue shall
provide) one certificate for all his shares or several certificates each
for one or more of his shares upon payment of fifty cents (US$0.50) for
every certificate after the first or such less sum as the Directors shall
from time to time determine provided that in respect of a share or shares
held jointly by several persons the Company shall not be bound to issue
more than one certificate and delivery of a certificate for a share to one
of the several joint holders shall be sufficient delivery to all such
holders.
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TRANSFER OF SHARES
21. The instrument of transfer of any share shall be in writing and shall be
executed by or on behalf of the transferor and the transferor shall be
deemed to remain the holder of a share until the name of the transferee is
entered in the register in respect thereof.
22. The registration of transfers may be suspended at such time 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 forty-five days
in any year.
REDEEMABLE SHARES
23. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are, or at
the option of the Company or the holder are, to be redeemed on such
terms and in such manner as the Company, before the issue of the
shares, may by Special Resolution determine.
(b) Subject to the provisions of the Statute and the Memorandum of
Association, the Company may purchase its own shares (including
fractions of a share), including any redeemable shares, provided that
the manner of purchase has first been authorised by the Company in
general meeting and may make payment therefor in any manner authorised
by the Statute, including out of capital.
VARIATION OF RIGHTS OF SHARES
24. If at any time the share capital of the Company is divided into different
classes of shares, the rights attached to any class (unless otherwise
provided by the terms of issue of the shares of that class) may be varied
with the consent in writing of the holders of three-fourths of the issued
shares of that class, or with the sanction of a Special Resolution passed
at a general meeting of the holders of the shares of that class.
The provisions of these Articles relating to general meetings shall apply
to every such general meeting of the holders of one class of shares except
that the necessary quorum shall be one person holding or representing by
proxy at least one-third of the issued shares of the class and that any
holder of shares of the class present in person or by proxy may demand a
poll.
25. 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.
COMMISSION ON SALE OF SHARES
26. The Company may in so far as the Statute from time to time permits pay a
commission to any person in consideration of his subscribing or agreeing to
subscribe whether absolutely
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or conditionally for any shares of the Company. Such commissions may be
satisfied by the payment of cash or the lodgement of fully or partly
paid-up shares or partly in one way and partly in the other. The Company
may also on any issue of shares pay such brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
27. No person shall be recognised by the Company as holding any share upon any
trust and the Company shall not be bound by or be compelled in any way to
recognise (even when having notice thereof) any equitable, contingent,
future, or partial interest in any share, or any interest in any fractional
part of a share, or (except only as is otherwise provided by these Articles
or the Statute) any other rights in respect of any share except an absolute
right to the entirety thereof in the registered holder.
LIEN ON SHARES
28. The Company shall have a first and paramount lien and charge on all shares
(whether fully paid-up or not) registered in the name of a Member (whether
solely or jointly with others) for all debts, liabilities or engagements to
or with the Company (whether presently payable or not) by such Member or
his estate, either alone or jointly with any other person, whether a Member
or not, but the Directors may at any time declare any share to be wholly or
in part exempt from the provisions of this Article. The registration of a
transfer of any such share shall operate as a waiver of the Company's lien
(if any) thereon. The Company's lien (if any) on a share shall extend to
all dividends or other monies payable in respect thereof.
29. The Company may sell, in such manner as the Directors think fit, any shares
on which the Company has a lien, but no sale shall be made unless a sum in
respect of which the lien exists is presently payable, nor until the
expiration of fourteen days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the lien exists as
is presently payable, has been given to the registered holder or holders
for the time being of the share, or the person, of which the Company has
notice, entitled thereto by reason of his death or bankruptcy.
30. To give effect to any such sale the Directors may authorise some person to
transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in any such transfer, and
he shall not be bound to see to the application 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.
31. The proceeds of such sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as
is presently payable and the residue, if any, shall (subject to a like lien
for sums not presently payable as existed upon the shares before the sale)
be paid to the person entitled to the shares at the date of the sale.
CALL ON SHARES
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32. (a) The Directors may from time to time make calls upon the Members in
respect of any monies unpaid on their shares (whether on account
of the nominal value of the shares or by way of premium or
otherwise) and not by the conditions of allotment thereof made
payable at fixed terms, provided that no call shall be payable at
less than one month from the date fixed for the payment of the
last preceding call, and each Member shall (subject to receiving
at least fourteen days notice specifying the time or times of
payment) pay to the Company at the time or times so specified the
amount called on the shares. A call may be revoked or postponed as
the Directors may determine. A call may be made payable by
instalments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a share shall be jointly and severally liable
to pay all calls in respect thereof.
33. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding ten per cent per annum as
the Directors may determine, but the Directors shall be at liberty to waive
payment of such interest either wholly or in part.
34. 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.
35. The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
36. (a) The Directors may, if they think fit, receive from any
Member willing to advance the same, all or any part of the monies
uncalled and unpaid upon any shares held by him, and upon all or
any of the monies so advanced may (until the same would but for
such advances, become payable) pay interest at such rate not
exceeding (unless the Company in general meeting shall otherwise
direct) seven per cent per annum, as may be agreed upon between the
Directors and the Member paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member
paying such sum to any portion of a dividend declared in respect of
any period prior to the date upon which such sum would, but for
such payment, become presently payable.
FORFEITURE OF SHARES
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37. (a) If a Member fails to pay any call or instalment of a call or to
make any payment required by the terms of issue on the day
appointed for payment thereof, the Directors may, at any time
thereafter during such time as any part of the call, instalment or
payment remains unpaid, give notice requiring payment of so much
of the call, instalment or payment as is unpaid, together with any
interest which may have accrued and all expenses that have been
incurred by the Company by reason of such non-payment. Such notice
shall name a day (not earlier than the expiration of fourteen days
from the date of giving of the notice) on or before which the
payment required by the notice is to be made, and shall state
that, in the event of non-payment at or before the time appointed
the shares in respect of which such notice was given will be
liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been
given may at any time thereafter, before the payment required by
the notice has been made, be forfeited by a resolution of the
Directors to that effect. Such forfeiture shall include all
dividends declared in respect of the forfeited share and not
actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Directors think fit and at any time
before a sale or disposition the forfeiture may be cancelled on
such terms as the Directors think fit.
38. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares, but shall, notwithstanding, remain liable
to pay to the Company all monies which, at the date of forfeiture were
payable by him to the Company in respect of the shares together with
interest thereon, but his liability shall cease if and when the Company
shall have received payment in full of all monies whenever payable in
respect of the shares.
39. A certificate in writing under the hand of one Director or the Secretary of
the Company that a share in the Company has been duly forfeited on a date
stated in the declaration shall be conclusive evidence of the fact therein
stated as against all persons claiming to be entitled to the share. The
Company may receive the consideration given for the share on any sale or
disposition thereof and may execute a transfer of the share in favour of
the person to whom the share is sold or disposed of and he shall thereupon
be registered as the holder of the share and shall not be bound to see to
the application of the purchase money, if any, nor shall his title to the
share be affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture, sale or disposal of the share.
40. The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum which, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the
share or by way of premium as if the same had been payable by virtue of a
call duly made and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
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41. The Company shall be entitled to charge a fee not exceeding one dollar
(US$l.00) on the registration of every probate, letters of administration,
certificate of death or marriage, power of attorney, notice in lieu of
distringas, or other instrument.
TRANSMISSION OF SHARES
42. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised
by the Company as having any title to his interest in the shares, but
nothing herein contained shall release the estate of any such deceased
holder from any liability in respect of any shares which had been held by
him solely or jointly with other persons.
43. (a) Any person becoming entitled to a share in consequence of the death
or bankruptcy or liquidation or dissolution of a Member (or in any
other way than by transfer) may, upon such evidence being produced
as may from time to time be required by the Directors and subject
as hereinafter provided, elect either to be registered himself as
holder of the share or to make such transfer of the share to such
other person nominated by him as the deceased or bankrupt person
could have made and to have such person registered as the
transferee thereof, but the Directors shall, in either case, have
the same right to decline or suspend registration as they would
have had in the case of a transfer of the share by that Member
before his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice
in writing signed by him stating that he so elects.
44. A person becoming entitled to a share by reason of the death or bankruptcy
or liquidation or dissolution of the holder (or in any other case than by
transfer) shall be entitled to the same dividends and other advantages to
which he would be entitled if he were the registered holder of the share,
except that he shall not, before being registered as a Member in respect of
the share, be entitled in respect of it to exercise any right conferred by
membership in relation to meetings of the Company PROVIDED HOWEVER that the
Directors may at any time give notice requiring any such person to elect
either to be registered himself or to transfer the share and if the notice
is not complied with within ninety days the Directors may thereafter
withhold payment of all dividends, bonuses or other monies payable in
respect of the share until the requirements of the notice have been
complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION,
CHANGE OF LOCATION OF REGISTERED OFFICE, AND
ALTERATION OF CAPITAL
45. (a) Subject to and in so far as permitted by the provisions of
the Statute, the Company may from time to time by ordinary
resolution alter or amend its Memorandum of Association otherwise
than with respect to its name and objects and may, without
15
restricting the generality of the foregoing:
(i) increase the share capital by such sum to be divided into
shares of such amount or without nominal or par value as the
resolution shall prescribe and with such rights, priorities
and privileges annexed thereto, as the Company in general
meeting may determine;
(ii) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide
the whole or any part of its share capital into shares of
smaller amount than is fixed by the Memorandum of Association
or into shares without nominal or par value; or
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the
original share capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution change its name or alter its objects.
(d) Without prejudice to Article 23 hereof and subject to the
provisions of the Statute, the Company may by Special Resolution
reduce its share capital and any capital redemption reserve fund.
(e) Subject to the provisions of the Statute, the Company may by
resolution of the Directors change the location of its registered
office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
46. For the purpose of determining Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or Members entitled to
receive payment of any dividend, or in order to make a determination of
Members for any other proper purpose, the Directors of the Company may
provide that the register of Members shall be closed for transfers for a
stated period but not to exceed in any case forty days. If the register of
Members shall be so closed for the purpose of determining Members entitled
to notice of or to vote at a meeting of Members such register shall be so
closed for at least ten days immediately preceding such meeting and the
record date for such determination shall be the date of the closure of the
register of Members.
47. In lieu of or apart from closing the register of Members, the Directors may
fix in advance a date as the record date for any such determination of
Members entitled to notice of or to vote at a meeting of the Members and
for the purpose of determining the Members entitled
16
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.
48. If the register of Members is not so closed and no record date is fixed for
the determination of Members entitled to notice of or to vote at a meeting
of Members or Members entitled to receive payment of a dividend, the date
on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, such determination shall apply to
any adjournment thereof.
GENERAL MEETING
49. (a) Subject to paragraph (c) hereof, the Company shall within one year
of its incorporation and in each year of its existence thereafter
hold a general meeting as its annual general meeting and shall
specify the meeting as such in the notices calling it. The annual
general meeting shall be held at such time and place as the
Directors shall appoint and if no other time and place is
prescribed by them, it shall be held at the registered office on
the second Wednesday in December of each year at ten o'clock in the
morning.
(b) At these meetings the report of the Directors (if any) shall be
presented.
(c) If the Company is exempted as defined in the Statute it may but
shall not be obliged to hold an annual general meeting.
50. (a) The Directors may whenever they think fit, and they shall
on the requisition of Members of the Company holding at the date of
the deposit of the requisition not less than one-tenth of such of
the paid-up capital of the Company as at the date of the deposit
carries the right of voting at general meetings of the Company,
proceed to convene a general meeting of the Company.
(b) The requisition must state the objects of the meeting and must be
signed by the requisitionists and deposited at the registered
office of the Company and may consist of several documents in like
form each signed by one or more requisitionists.
(c) If the Directors do not within twenty-one days from the date of the
deposit of the requisition duly proceed to convene a general
meeting, the requisitionists, or any of them representing more than
one-half of the total voting rights of all of them, may themselves
convene a general meeting, but any meeting so convened shall not be
held after the expiration of three months after the expiration of
the said twenty-one days.
(d) A general meeting convened as aforesaid by requisitionists shall be
convened in the same manner as nearly as possible as that in which
general meetings are to be
17
convened by Directors.
NOTICE OF GENERAL MEETINGS
51. At least five days' notice shall be given of an annual general meeting or
any other general meeting. Every notice shall be exclusive of the day on
which it is given or deemed to be given and of the day for which it is
given and shall specify the place, the day and the hour of the meeting and
the general nature of the business and shall be given in manner hereinafter
mentioned or in such other manner if any as may be prescribed by the
Company PROVIDED that a general meeting of the Company shall, whether or
not the notice specified in this regulation has been given and whether or
not the provisions of Article 50 have been complied with, be deemed to have
been duly convened if it is so agreed:
(a) in the case of a general meeting called as an annual general
meeting by all the Members entitled to attend and vote thereat or
their proxies; and
(b) in the case of any other general meeting by a majority in number of
the Members having a right to attend and vote at the meeting, being
a majority together holding not less than seventy-five per cent in
nominal value or in the case of shares without nominal or par value
seventy-five per cent of the shares in issue, or their proxies.
52. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
53. 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; two
Members present in person or by proxy shall be a quorum provided always
that if the Company has one Member of record the quorum shall be that one
Member present in person or by proxy.
54. A resolution (including a Special Resolution) in writing (in one or more
counterparts) signed by all Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations
by their duly authorised representatives) shall be as valid and effective
as if the same had been passed at a general meeting of the Company duly
convened and held.
55. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of Members,
shall be dissolved and in any other case it shall stand adjourned to the
same day in the next week at the same time and place or to such other time
or such other place as the Directors may determine and if at the adjourned
meeting a quorum is not present within half an hour from the time appointed
for the meeting the Members present shall be a quorum.
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56. The Chairman, if any, of the Board of Directors shall preside as Chairman
at every general meeting of the Company, or if there is no such Chairman,
or if he shall not be present within fifteen minutes after the time
appointed for the holding of the meeting, or is unwilling to act, the
Directors present shall elect one of their number to be Chairman of the
meeting.
57. If at any general meeting no Director is willing to act as Chairman or if
no Director is present within fifteen minutes after the time appointed for
holding the meeting, the Members present shall choose one of their number
to be Chairman of the meeting.
58. The Chairman may, with the consent of any general meeting duly constituted
hereunder, and shall if so directed by the meeting, adjourn the meeting
from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished
at the meeting from which the adjournment took place. When a general
meeting is adjourned for thirty days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting; save as
aforesaid it shall not be necessary to give any notice of an adjournment or
of the business to be transacted at an adjourned general meeting.
59. At any general meeting a resolution put to the vote of the meeting shall be
decided on a poll.
60. Unless a poll be so demanded a declaration by the Chairman that a
resolution has on a show of hands been carried, or carried unanimously, or
by a particular majority, or lost, and an entry to that effect in the
Company's Minute Book containing the Minutes of the proceedings of the
meeting shall be conclusive evidence of that fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
61. The demand for a poll may be withdrawn.
62. Except as provided in Article 64, if a poll is duly demanded it shall be
taken in such manner as the Chairman directs and the result of the poll
shall be deemed to be the resolution of the general meeting at which the
poll was demanded.
63. In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman of the general meeting at which the show of hands takes
place or at which the poll is demanded, shall be entitled to a second or
casting vote.
64. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs
and any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
65. Subject to any rights or restrictions for the time being attached to any
class or classes of
19
shares, every Member of record present in person or by proxy shall have one
vote for each share registered in his name in the register of Members.
66. In the case of joint holders of record the vote of the senior who tenders a
vote, whether in person or by proxy, shall be accepted to the exclusion of
the votes of the other joint holders, and for this purpose seniority shall
be determined by the order in which the names stand in the register of
Members.
67. A Member of unsound mind, or in respect of whom an order has been made by
any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other
person in the nature of a committee, receiver or curator bonis appointed by
that court, and any such committee, receiver, curator bonis or other
persons may vote by proxy.
68. No Member shall be entitled to vote at any general meeting unless he is
registered as a shareholder of the Company on the record date for such
meeting nor unless all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
69. No objection shall be raised to the qualification of any voter except at
the general meeting or adjourned general meeting at which the vote objected
to is given or tendered and every vote not disallowed at such general
meeting shall be valid for all purposes. Any such objection made in due
time shall be referred to the Chairman of the general meeting whose
decision shall be final and conclusive.
70. On a poll votes may be given either personally or by proxy.
PROXIES
71. The instrument appointing a proxy shall be in writing and shall be executed
under the hand of the appointor or of his attorney duly authorised in
writing, or, if the appointor is a corporation under the hand of an officer
or attorney duly authorised in that behalf. A proxy need not be a Member of
the Company.
72. The instrument appointing a proxy shall be deposited at the registered
office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for
holding the meeting, or adjourned meeting provided that the Chairman of the
Meeting may at his discretion direct that an instrument of proxy shall be
deemed to have been duly deposited upon receipt of telex, cable or telecopy
confirmation from the appointor that the instrument of proxy duly signed is
in the course of transmission to the Company.
73. The instrument appointing a proxy may be in any usual or common form and
may be expressed to be for a particular meeting or any adjournment thereof
or generally until revoked. An instrument appointing a proxy shall be
deemed to include the power to demand or join or concur in demanding a
poll.
20
74. A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or insanity of the principal or
revocation of the proxy 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.
75. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision by
resolution of its Directors or other governing body authorise such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of Members of the Company, and the person so authorised
shall be entitled to exercise the same powers on behalf of the corporation
which he represents as the corporation could exercise if it were an
individual Member of record of the Company.
76. Shares of its own capital belonging to the Company or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of
outstanding shares at any given time.
DIRECTORS
77. There shall be a Board of Directors consisting of not less than one or more
than ten persons (exclusive of alternate Directors) PROVIDED HOWEVER that
the Company may from time to time by ordinary resolution increase or reduce
the limits in the number of Directors. The first Directors of the Company
shall be determined in writing by, or appointed by a resolution of, the
subscribers of the Memorandum of Association or a majority of them.
78. The remuneration to be paid to the Directors shall be such remuneration as
the Directors shall determine. Such remuneration shall be deemed to accrue
from day to day. The Directors shall also be entitled to be paid their
travelling, hotel and other expenses properly incurred by them in going to,
attending and returning from meetings of the Directors, or any committee of
the Directors, or general meetings of the Company, or otherwise in
connection with the business of the Company, or to receive a fixed
allowance in respect thereof as may be determined by the Directors from
time to time, or a combination partly of one such method and partly the
other.
79. The Directors may by resolution award special remuneration to any Director
of the Company undertaking any special work or services for, or undertaking
any special mission on behalf of, the Company other than his ordinary
routine work as a Director. Any fees paid to a Director who is also counsel
or solicitor to the Company, or otherwise serves it in a professional
capacity shall be in addition to his remuneration as a Director.
80. A Director or alternate Director may hold any other office or place of
profit under the Company (other than the office of Auditor) in conjunction
with his office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine.
21
81. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled
to remuneration for professional services as if he were not a Director or
alternate Director.
82. A shareholding qualification for Directors may be fixed by the Company in
general meeting, but unless and until so fixed no qualification shall be
required.
83. A Director or alternate Director of the Company may be or become a director
or other officer of or otherwise interested in any company promoted by the
Company or in which the Company may be interested as shareholder or
otherwise and no such Director or alternate Director shall be accountable
to the Company for any remuneration or other benefits received by him as a
director or officer of, or from his interest in, such other company.
84. No person shall be disqualified from the office of Director or alternate
Director or prevented by such office from contracting with the Company,
either as vendor, purchaser or otherwise, nor shall any such contract or
any contract or transaction entered into by or on behalf of the Company in
which any Director or alternate Director shall be in any way interested be
or be liable to be avoided, nor shall any Director or alternate Director so
contracting or being so interested be liable to account to the Company for
any profit realised by any such contract or transaction by reason of such
Director holding office or of the fiduciary relation thereby established. A
Director (or his alternate Director in his absence) shall be at liberty to
vote in respect of any contract or transaction in which he is so interested
as aforesaid PROVIDED HOWEVER that the nature of the interest of any
Director or alternate Director in any such contract or transaction shall be
disclosed by him or the alternate Director appointed by him at or prior to
its consideration and any vote thereon.
85. A general notice that a Director or alternate Director is a shareholder of
any specified firm or company and is to be regarded as interested in any
transaction with such firm or company shall be sufficient disclosure under
Article 84 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE DIRECTORS
86. Subject to the exception contained in Article 94, a Director who expects to
be unable to attend Directors' Meetings because of absence, illness or
otherwise may appoint any person to be an alternate Director to act in his
stead and such appointee whilst he holds office as an alternate Director
shall, in the event of absence therefrom of his appointor, be entitled to
attend meetings of the Directors and to vote thereat and to do, in the
place and stead of his appointor, any other act or thing which his
appointor is permitted or required to do by virtue of his being a Director
as if the alternate Director were the appointor, other than appointment of
an alternate to himself, and he shall ipso facto vacate office if and when
his appointor ceases to be a Director or removes the appointee from office.
Any appointment or removal under this Article shall be effected by notice
in writing under the hand of the Director making the same.
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POWERS AND DUTIES OF DIRECTORS
87. The business of the Company shall be managed by the Directors (or a sole
Director if only one is appointed) who may pay all expenses incurred in
promoting, registering and setting up the Company, and may exercise all
such powers of the Company as are not, from time to time by the Statute, or
by these Articles, or such regulations, being not inconsistent with the
aforesaid, as may be prescribed by the Company in general meeting required
to be exercised by the Company in general meeting PROVIDED HOWEVER that no
regulations made by the Company in general meeting shall invalidate any
prior act of the Directors which would have been valid if that regulation
had not been made.
88. The Directors may from time to time and at any time by powers of attorney
appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys of
the Company for such purpose and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such conditions as
they may think fit, and any such powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any
such attorneys as the Directors may think fit and may also authorise any
such attorney to delegate all or any of the powers, authorities and
discretions vested in him.
89. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the
case may be in such manner as the Directors shall from time to time by
resolution determine.
90. The Directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented thereat by
an alternate or by proxy) present at each meeting of the Directors and
of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the Company and
of the Directors and of committees of Directors.
91. The Directors on behalf of the Company may pay a gratuity or pension or
allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or dependants
and may make contributions to any fund and pay premiums for the purchase or
provision of any such gratuity, pension or allowance.
92. The Directors may exercise all the powers of the Company to borrow money
and to mortgage or charge its undertaking, property and uncalled capital or
any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
23
MANAGEMENT
93. (a) The Directors may from time to time provide for the management of
the affairs of the Company in such manner as they shall think fit
and the provisions contained in the three next following paragraphs
shall be without prejudice to the general powers conferred by this
paragraph.
(b) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the
affairs of the Company and may appoint any persons to be members of
such committees or local boards or any managers or agents and may
fix their remuneration.
(c) The Directors from time to time and at any time may delegate to any
such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the
Directors and may authorise the members for the time being of any
such local board, or any of them to fill up any vacancies therein
and to act notwithstanding vacancies and any such appointment or
delegation may be made on such terms and subject to such conditions
as the Directors may think fit and the Directors may at any time
remove any person so appointed and may annul or vary any such
delegation, but no person dealing in good faith and without notice
of any such annulment or variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by the Directors
to subdelegate all or any of the powers, authorities, and
discretions for the time being vested in them.
MANAGING DIRECTORS
94. The Directors may, from time to time, appoint one or more of their body
(but not an alternate Director) to the office of Managing Director for such
term and at such remuneration (whether by way of salary, or commission, or
participation in profits, or partly in one way and partly in another) as
they may think fit but his appointment shall be subject to determination
ipso facto if he ceases from any cause to be a Director and no alternate
Director appointed by him can act in his stead as a Director or Managing
Director.
95. The Directors may entrust to and confer upon a Managing Director any of the
powers exercisable by them upon such terms and conditions and with such
restrictions as they may think fit and either collaterally with or to the
exclusion of their own powers and may from time to time revoke, withdraw,
alter or vary all or any of such powers.
PROCEEDINGS OF DIRECTORS
96. Except as otherwise provided by these Articles, the Directors shall meet
together for the despatch of business, convening, adjourning and otherwise
regulating their meetings as they
24
think fit. Questions arising at any meeting shall be decided by a majority
of votes of the Directors and alternate Directors present at a meeting at
which there is a quorum, the vote of an alternate Director not being
counted if his appointor be present at such meeting. In case of an equality
of votes, the Chairman shall have a second or casting vote.
97. A Director or alternate Director may, and the Secretary on the requisition
of a Director or alternate Director shall, at any time summon a meeting of
the Directors by at least two days' notice in writing to every Director and
alternate Director which notice shall set forth the general nature of the
business to be considered unless notice is waived by all the Directors (or
their alternates) either at, before or after the meeting is held and
PROVIDED FURTHER if notice is given in person, by cable, telex or telecopy
the same shall be deemed to have been given on the day it is delivered to
the Directors or transmitting organisation as the case may be. The
provisions of Article 52 shall apply mutatis mutandis with respect to
notices of meetings of Directors.
98. The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors and unless so fixed shall be two, a Director
and his appointed alternate Director being considered only one person for
this purpose, PROVIDED ALWAYS that if there shall at any time be only a
sole Director the quorum shall be one. For the purposes of this Article an
alternate Director or proxy appointed by a Director shall be counted in a
quorum at a meeting at which the Director appointing him is not present.
99. The continuing Directors may act notwithstanding any vacancy in their body,
but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to that number, or of summoning a general meeting of
the Company, but for no other purpose.
100. The Directors may elect a Chairman of their Board and determine the period
for which he is to hold office; but if no such Chairman is elected, or if
at any meeting the Chairman is not present within five minutes after the
time appointed for holding the same, the Directors present may choose one
of their number to be Chairman of the meeting.
101. The Directors may delegate any of their powers to committees consisting of
such member or members of the Board of Directors (including Alternate
Directors in the absence of their appointors) as they think fit; any
committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the Directors.
102. A committee may meet and adjourn as it thinks proper. Questions arising at
any meeting shall be determined by a majority of votes of the members
present, and in the case of an equality of votes the Chairman shall have a
second or casting vote.
103. All acts done by any meeting of the Directors or of a committee of
Directors (including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was some defect
in the appointment of any Director or alternate Director, or that they or
any of them were disqualified, be as valid as if every such person
25
had been duly appointed and qualified to be a Director or alternate
Director as the case may be.
104. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. A resolution in writing (in one or more
counterparts), signed by all the Directors for the time being or all the
members of a committee of Directors (an alternate Director being entitled
to sign such resolution on behalf of his appointor) shall be as valid and
effectual as if it had been passed at a meeting of the Directors or
committee as the case may be duly convened and held.
105. (a) A Director may be represented at any meetings of the Board of
Directors by a proxy appointed by him in which event the presence
or vote of the proxy shall for all purposes be deemed to be that of
the Director.
(b) The provisions of Articles 71-74 shall mutatis mutandis apply to
the appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
106. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns the
office of Director;
(b) if he absents himself (without being represented by proxy or an
alternate Director appointed by him) from three consecutive
meetings of the Board of Directors without special leave of absence
from the Directors, and they pass a resolution that he has by
reason of such absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or
composition with his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
107. The Company may by ordinary resolution appoint any person to be a Director
and may in like manner remove any Director and may in like manner appoint
another person in his stead.
108. The Directors shall have power at any time and from time to time to appoint
any person to be a Director, either to fill a casual vacancy or as an
addition to the existing Directors but so that the total amount of
Directors (exclusive of alternate Directors) shall not at any time exceed
the number fixed in accordance with these Articles.
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PRESUMPTION OF ASSENT
109. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed
to have assented to the action taken unless his dissent shall be entered in
the Minutes of the meeting or unless he shall file his written dissent from
such action with the person acting as the Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to
such person immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favour of such action.
SEAL
110. (a) The Company may, if the Directors so determine, have a
Seal which shall, subject to paragraph (c) hereof, only be used by
the authority of the Directors or of a committee of the Directors
authorised by the Directors in that behalf and every instrument to
which the Seal has been affixed shall be signed by one person who
shall be either a Director or the Secretary or Secretary-Treasurer
or some person appointed by the Directors for the purpose.
(b) The Company may have for use in any place or places outside the
Cayman Islands a duplicate Seal or Seals each of which shall be a
facsimile of the Common Seal of the Company and, if the Directors
so determine, with the addition on its face of the name of every
place where it is to be used.
(c) A Director, Secretary or other officer or representative or
attorney may without further authority of the Directors affix the
Seal of the Company over his signature alone to any document of the
Company required to be authenticated by him under Seal or to be
filed with the Registrar of Companies in the Cayman Islands or
elsewhere wheresoever.
OFFICERS
111. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such
other officers as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions as
to disqualification and removal as the Directors from time to time
prescribe.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
112. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of the
Company outstanding and authorise payment of the same out of the funds of
the Company lawfully available therefor.
113. The Directors may, before declaring any dividends or distributions, set
aside such sums as
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they think proper as a reserve or reserves which shall at the discretion of
the Directors, be applicable for any purpose of the Company and pending
such application may, at the like discretion, be employed in the business
of the Company.
114. No dividend or distribution shall be payable except out of the profits of
the Company, realised or unrealised, or out of the share premium account or
as otherwise permitted by the Statute.
115. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends or distributions, if dividends or distributions are
to be declared on a class of shares they shall be declared and paid
according to the amounts paid or credited as paid on the shares of such
class outstanding on the record date for such dividend or distribution as
determined in accordance with these Articles but no amount paid or credited
as paid on a share in advance of calls shall be treated for the purpose of
this Article as paid on the share.
116. The Directors may deduct from any dividend or distribution payable to any
Member all sums of money (if any) presently payable by him to the Company
on account of calls or otherwise.
117. The Directors may declare that any dividend or distribution be paid wholly
or partly by the distribution of specific assets and in particular of paid
up shares, debentures, or debenture stock of any other company or in any
one or more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and
in particular may issue fractional certificates and fix the value for
distribution of such specific assets or any part thereof and may determine
that cash payments shall be made to any Members upon the footing of the
value so fixed in order to adjust the rights of all Members and may vest
any such specific assets in trustees as may seem expedient to the
Directors.
118. Any dividend, distribution, interest or other monies payable in cash in
respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to
such person and to such address as such holder or joint holders may in
writing direct. Every such cheque or warrant shall be made payable to the
order of the person to whom it is sent. Any one of two or more joint
holders may give effectual receipts for any dividends, bonuses, or other
monies payable in respect of the share held by them as joint holders.
119. No dividend or distribution shall bear interest against the Company.
CAPITALISATION
120. The Company may upon the recommendation of the Directors by ordinary
resolution authorise the Directors to capitalise any sum standing to the
credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the
credit of profit and loss account or otherwise available for
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distribution and to appropriate such sum to Members in the proportions in
which such sum would have been divisible amongst them had the same been a
distribution of profits by way of dividend and to apply such sum on their
behalf in paying up in full unissued shares for allotment and distribution
credited as fully paid up to and amongst them in the proportion aforesaid.
In such event the Directors shall do all acts and things required to give
effect to such capitalisation, with full power to the Directors to make
such provisions as they think fit for the case of shares becoming
distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the Members
concerned). The Directors may authorise any person to enter on behalf of
all of the Members interested into an agreement with the Company providing
for such capitalisation and matters incidental thereto and any agreement
made under such authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
121. The Directors shall cause proper books of account to be kept with respect
to:
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt or expenditure takes place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such
books of account as are necessary to give a true and fair view of the state
of the Company's affairs and to explain its transactions.
122. The Directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the
inspection of Members not being Directors and no Member (not being a
Director) shall have any right of inspecting any account or book or
document of the Company except as conferred by Statute or authorised by the
Directors or by the Company in general meeting.
123. The Directors may from time to time cause to be prepared and to be laid
before the Company in general meeting profit and loss accounts, balance
sheets, group accounts (if any) and such other reports and accounts as may
be required by law.
AUDIT
124. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office until the next annual general
meeting and may fix his or their remuneration.
125. The Directors may before the first annual general meeting appoint an
Auditor or Auditors of
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the Company who shall hold office until the first annual general meeting
unless previously removed by an ordinary resolution of the Members in
general meeting in which case the Members at that meeting may appoint
Auditors. The Directors may fill any casual vacancy in the office of
Auditor but while any such vacancy continues the surviving or continuing
Auditor or Auditors, if any, may act. The remuneration of any Auditor
appointed by the Directors under this Article may be fixed by the
Directors.
126. Every Auditor of the Company shall have a right of access at all times to
the books and accounts and vouchers of the Company and shall be entitled to
require from the Directors and Officers of the Company such information and
explanation as may be necessary for the performance of the duties of the
auditors.
127. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon request
of the Directors or any general meeting of the Members, make a report on
the accounts of the Company in general meeting during their tenure of
office.
NOTICES
128. Notices shall be in writing and may be given by the Company to any Member
either personally or by sending it by post, cable, telex or telecopy to him
or to his address as shown in the register of Members, such notice, if
mailed, to be forwarded airmail if the address be outside the Cayman
Islands.
129. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying and
posting a letter containing the notice, and to have been effected
at the expiration of sixty hours after the letter containing the
same is posted as aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service of the
notice shall be deemed to be effected by properly addressing, and
sending such notice through a transmitting organisation and to have
been effected on the day the same is sent as aforesaid.
130. A notice may be given by the Company to the joint holders of record of a
share by giving the notice to the joint holder first named on the register
of Members in respect of the share.
131. A notice may be given by the Company to the person or persons which the
Company has been advised are entitled to a share or shares in consequence
of the death or bankruptcy of a Member by sending it through the post as
aforesaid in a pre-paid letter addressed to them by name, or by the title
of representatives of the deceased, or trustee of the bankrupt, or by any
like description at the address supplied for that purpose by the persons
claiming to be so entitled, or at the option of the Company by giving the
notice in any manner in which the same might have been given if the death
or bankruptcy had not occurred.
132. Notice of every general meeting shall be given in any manner hereinbefore
authorised to:
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(a) every person shown as a Member in the register of Members as of the
record date for such meeting except that in the case of joint
holders the notice shall be sufficient if given to the joint holder
first named in the register of Members.
(b) every person upon whom the ownership of a share devolves by reason
of his being a legal personal representative or a trustee in
bankruptcy of a Member of record where the Member of record but for
his death or bankruptcy would be entitled to receive notice of the
meeting; and
No other person shall be entitled to receive notices of general meetings.
WINDING UP
133. Subject to the provisions of Articles 6 and 12, if the Company shall be
wound up the liquidator may, with the sanction of a Special Resolution of
the Company and any other sanction required by the Statute, divide amongst
the Members in specie or kind the whole or any part of the assets of the
Company (whether they shall consist of property of the same kind or not)
and may for such purpose set such value as he deems fair upon any property
to be divided as aforesaid and may determine how such division shall be
carried out as between the Members or different classes of Members. The
liquidator may with the like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories
as the liquidator, with the like sanction, shall think fit, but so that no
Member shall be compelled to accept any shares or other securities whereon
there is any liability.
134. Subject to the provisions of Articles 6 and 12, if the Company shall be
wound up, and the assets available for distribution amongst the Members as
such shall be insufficient to repay the whole of the paid-up capital, such
assets shall be distributed so that, as nearly as may be, the losses shall
be borne by the Members in proportion to the capital paid up, or which
ought to have been paid up, at the commencement of the winding up on the
shares held by them respectively. And if in a winding up the assets
available for distribution amongst the Members shall be more than
sufficient to repay the whole of the capital paid up at the commencement of
the winding up, the excess shall be distributed amongst the Members in
proportion to the capital paid up at the commencement of the winding up on
the shares held by them respectively. This Article is to be without
prejudice to the rights of the holders of shares issued upon special terms
and conditions.
INDEMNITY
135. The Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the affairs of the
Company and their heirs, executors, administrators and personal
representatives respectively shall be indemnified out of the assets of the
Company from and against all actions, proceedings, costs, charges, losses,
damages and expenses which they or any of them shall or may incur or
sustain by reason of any act done or omitted in or about the execution of
their duty in their respective offices or
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trusts, except such (if any) as they shall incur or sustain by or through
their own wilful neglect or default respectively and no such Director,
officer or trustee shall be answerable for the acts, receipts, neglects or
defaults of any other Director, officer or trustee or for joining in any
receipt for the sake of conformity or for the solvency or honesty of any
banker or other persons with whom any monies or effects belonging to the
Company may be lodged or deposited for safe custody or for any
insufficiency of any security upon which any monies of the Company may be
invested or for any other loss or damage due to any such cause as aforesaid
or which may happen in or about the execution of his office or trust unless
the same shall happen through the wilful neglect or default of such
Director, Officer or trustee.
FINANCIAL YEAR
136. Unless the Directors otherwise prescribe, the financial year of the Company
shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
137. Subject to the Statute, the Company may at any time and from time to time
by Special Resolution alter or amend these Articles in whole or in part.
TRANSFER BY WAY OF CONTINUATION
138. If the Company is exempted as defined in the Statute, it shall, subject to
the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and
to be deregistered in the Cayman Islands.
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