EXHIBIT 3.29
THE COMPANIES ORDINANCE
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
H.P.H. PRODUCTS
PRELIMINARY
1. Second Schedule Excluded
The articles contained in the Second Schedule of the Ordinance and all
regulations thereof shall not apply to the Company.
2. Interpretation
(a) In these Articles the following terms shall bear the meaning ascribed
to them below:
the "Company" shall mean the above named company.
the "Ordinance" shall mean the Companies Ordinance (New Version)
5743-1983.
the "Memorandum" shall mean the Memorandum of Association of the Company,
as originally registered and as it may from time to time be amended.
the "Articles" shall mean the articles of association contained in these
Articles, as originally registered and as they may from time to time be amended.
(b) Terms and expressions used in the Articles and not defined herein,
shall bear the same meaning as in the Ordinance in force on the date when the
Articles first became effective.
(c) Sections 2, 4, 5, 6, 7, 8, and 10 of the Interpretation Law 5741-1981,
shall apply, mutatis mutandis, to the interpretation of the Articles.
(d) The captions in the Articles are for convenience only and shall not be
deemed a part hereof or affect the construction of any provision hereof.
3. Private Company
The company is a private company, and accordingly:
(a) the right to transfer shares in the Company shall be restricted as
hereinafter provided;
(b) any invitation to the public to subscribe for any shares or debentures
of the Company is hereby prohibited;
(c) the number of members of the Company for the time being (exclusive of
persons who are in the employment of the Company and of persons who having been
formerly in the employment of the Company were, while in such employment, and
have continued after termination of such employment to be, members of the
Company), shall not exceed fifty (50). Two or more persons who jointly hold one
or more shares in the Company shall, for the purposes of this Article, be deemed
a single member.
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SHARE CAPITAL
4. Initial Share Capital
The initial share capital of the Company is Fifteen Thousand One Hundred
New Israeli Shekels (NIS 15,100) divided into Fifteen Thousand One Hundred
(15,100) Shares of One New Israeli Shekel nominal value each.
5. Alteration of Share Capital
The Company may, from time to time, by Special Resolution:
(a) increase its share capital by any amount it thinks expedient by the
creation of new shares. The power to increase the share capital may be exercised
by the Company whether or not all the shares then authorized have been issued
and whether or not all the shares theretofore issued have been called up for
payment. Such Special Resolution shall set forth the amount of the increase, the
number of the new shares created thereby, their nominal value and class, and may
also provide for the rights preferences or deferred rights that shall be
attached to the newly created shares and the restrictions to which such shares
shall be subject;
(b) consolidate and divide all or any of its issued or unissued share
capital into shares of larger nominal value than its existing shares;
(c) subdivide its issued or unissued shares, or any of them, into shares
of smaller nominal value than is fixed by the Memorandum; provided, however,
that the proportion between the amount paid and the amount unpaid on each share
which is not fully paid-up shall be retained in the subdivision;
(d) convert all or any of its fully paid-up shares into stock. The
provisions of these Articles applicable to fully paid-up shares shall apply to
stock as well, and the words "share" and "shareholder" therein contained shall
be deemed to include "stock" and "stockholder", respectively;
(e) reconvert any stock into fully paid-up shares of any denomination or
class;
(f) cancel any shares which, at the date of the passing of the Special
Resolution, have not been issued or agreed to be issued and diminish the amount
of its share capital by the aggregate nominal value of the shares so cancelled;
(g) subject to any approval or consent required by law, reduce its share
capital in any manner whatsoever.
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SHARES
6. Rights Attached to Shares
(a) Subject to any contrary provision of the Memorandum or the Articles,
same rights, obligations and restrictions shall be attached to all the shares of
the Company regardless of their denomination or class.
(b) If at any time the share capital is divided into different classes of
shares, the rights attached to any class may be modified or abrogated by the
Company by Special Resolution, subject to the consent in writing of the holders
of seventy-five percent (75%) of the issued shares of such class or the sanction
of a Special Resolution passed at a separate General Meeting of the holders of
the shares of such class.
The provisions of these Articles relating to General Meetings shall,
mutatis mutandis, apply to any separate General Meeting of the holders of the
shares of a particular class, provided, however, that the requisite quorum at
any such separate General Meeting shall be one or more Members present in person
or by proxy and holding not less than fifty percent (50%) of the issued shares
of such class.
(c) The enlargement of an existing class of shares, or the issuance of
additional shares thereof, shall not be deemed, for purposes of Article 6(b), to
modify or abrogate the rights attached to the issued shares of such class or of
any other class.
7. Issuance of Shares
Issuance of shares of the Company shall be under the control of the Board
of Directors, who shall have the exclusive authority to issue the Company's
shares, in whole or in part, otherwise dispose of them or grant options to
acquire the shares, to such persons and on such terms and conditions as the
Board of Directors may think fit.
8. Share Certificates
(a) Each member shall be entitled to receive from the Company one (1)
share certificate in respect of the shares of any class registered in his name
on the Register of Members or, if approved by the Board of Directors, to several
share certificates each for one or more of such shares.
(b) Each share certificate issued by the Company shall be numerated,
denote the class and serial numbers of the shares represented thereby and the
name of the owner thereof as registered on the Register of Members, and may also
specify the amount paid-up thereon. A share certificate shall be signed by the
Company.
(c) A share certificate denoting two or more persons as co-owners of the
shares represented thereby shall be delivered to the person first named on the
Register of Members in respect of such co-ownership.
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(d) A share certificate defaced or defective, may be replaced upon being
delivered to the Company and being cancelled. A share certificate lost or
destroyed may be replaced upon furnishing of evidence to the satisfaction of the
Board of Directors proving such loss or destruction and on condition that the
Company be furnished with such indemnity or security as the Board of Directors
may think fit.
A member requesting replacement of a share certificate shall bear all the
costs incurred by the Company in connection with the provisions of this Article.
9. Registered Owner
The Company shall be entitled to treat the person registered on the
Register of Members as the holder of any share, as the absolute owner thereof,
and accordingly, shall not be bound to recognize any trust or other right,
whether at law or in equity, of any other person to or in respect of such share.
10. Calls on Shares
(a) The Board of Directors may, from time to time, make calls upon members
in respect of any sum unpaid on their shares which is not, by the terms of
issuance thereof, payable at a fixed time. Each member shall pay to the Company
the amount of every call so made upon him at the time(s) and place(s) designated
in such call. Unless otherwise stipulated in the resolution of the Board of
Directors, each payment in response to a call shall be deemed to constitute a
pro rata payment on account of all the shares in respect of which such call was
made. A call may contain a call for payment in installments.
(b) Notice of any call shall be given in writing to the member(s) in
question not less than fourteen (14) days prior to the time of payment as fixed
therein. At any time before the due date of any such payment, the Board of
Directors may, by a notice to the member(s), revoke such call, in whole or in
part, postpone the designated date(s) of payment or change the designated place
of payment.
(c) If, by the terms of issuance of any share, any amount is made payable
at any fixed time, such amount shall be payable at such a time, and the holder
of the share shall he deemed, for all intents and purposes, to have duly
received a call in respect of such payment.
(d) The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof. A call duly made upon one of the joint holders
shall be deemed to have been duly made upon all of the joint holders.
(e) Any amount unpaid in respect of a call shall bear interest from the
date on which it is payable until actual payment thereof at a rate equal to the
then prevailing rate of interest for unauthorized overdrafts as charged by Bank
Leumi Le-Israel B.M.
The provision of this Article 10(e) shall in no way deprive the Company
of, or derogate from, any other rights and remedies it may have against such
member pursuant to the Articles or any pertinent law.
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(f) The Board of Directors may allow any member to prepay any amount not
yet payable in respect of his shares, and may approve the payment of interest
for such prepayment at a rate as may be agreed upon between the Board of
Directors and the member so prepaying.
(g) Upon the issuance of shares of the Company, the Board of Directors may
provide for the terms of payment of such shares, and may provide for differences
among the allottees as to such terms.
11. Forfeiture and Surrender
(a) If any member fails to pay any amount payable in respect of a call, or
interest thereon as provided for herein, the Company, by resolution of the Board
of Directors, may at any time thereafter, so long as the said amount or interest
remains unpaid, forfeit all or any of the shares in respect of which said call
had been made. Any expense incurred by the Company in attempting to collect any
such amount or interest, including, inter alia, attorneys' fees and costs of
suit, shall be added to, and shall, for all purposes (including the accrual of
interest thereon), constitute a part of the amount payable to the Company in
respect of such call.
(b) Upon the adoption of a resolution of forfeiture, the Board of
Directors shall cause notice thereof to be given to such member, which notice
shall state that, in the event of failure to pay the entire amount so payable
within a period stipulated in the notice (which period shall be not less than
fourteen (14) days), such shares shall be, ipso facto, forfeited. Prior to the
expiration of such period, the Board of Directors may extend the period
specified in the notice of forfeiture or nullify such resolution of forfeiture,
but no such nullification shall estop the Board of Directors from adopting a
further resolution of forfeiture in respect of the non-payment of said amount.
(c) Whenever shares are forfeited as herein provided, all dividends
theretofore declared in respect thereof and not actually paid shall be deemed to
have been forfeited at the same time.
(d) The Company, by resolution of the Board of Directors, may accept the
voluntary surrender by any member of all or any part of his shares.
(e) Any share forfeited or surrendered as provided herein shall thereupon
become the property of the Company, and the same may be reissued or otherwise
disposed of as the Board of Directors may think fit.
(f) Any member whose shares have been forfeited or surrendered shall cease
to be a member in respect of the forfeited or surrendered shares, but shall,
notwithstanding, be liable to pay to the Company all calls, interest and
expenses owing upon or in respect of such shares at the time of forfeiture or
surrender, together with interest thereon from the time of forfeiture or
surrender until actual payment, and the Board of Directors, in its discretion,
may enforce the payment of such moneys, or any part thereof. In the event of
such forfeiture or surrender, the Company, by resolution of the Board of
Directors, may accelerate the date(s) of payment of any or all amounts then
owing by the member in question (but not yet due) arising from any cause
whatsoever, whereupon all of such amounts shall forthwith become due and
payable.
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The Board of Directors may, at any time before any share so forfeited or
surrendered shall have been reissued or otherwise disposed of to a third party,
nullify the forfeiture or surrender on such conditions as it thinks fit, but no
such nullification shall estop the Board of Directors from re-exercising its
powers of forfeiture pursuant to this Article 11.
12. Lien
The Company shall have, at all times, a first and paramount lien upon all
the shares registered in the name of each member on the Register of Members,
upon all the dividends declared in respect of such shares and upon the proceeds
of the sale thereof, as security for his obligations. For the purposes of this
Article 12, the term "obligation" shall mean any and all present and future
indebtedness which may at any time be owing by the member in question to the
Company, however arising, whether such indebtedness is absolute or contingent,
joint or several, matured or unmatured, liquidated or non-liquidated.
13. Sale of Shares after Forfeiture or Surrender or in Enforcement of Lien
Upon any sale of shares after forfeiture or surrender or in the course of
enforcement of lien, the Company may appoint any person to execute an instrument
of transfer of the shares so sold or any other instrument required to effect the
sale, and shall be entitled to register the purchaser on the Register of Members
as the holder of the shares so purchased. The purchaser shall not be obliged to
check the regularity of the proceedings of forfeiture, surrender or enforcement
of lien or the application of the purchase money, and after his name has been
entered in the Register of Members in respect of such shares, the validity of
the sale shall not be impeached by any person, and the remedy of any person
aggrieved by the sale shall be in damages only, and against the Company
exclusively.
14. Redeemable Shares
Subject to any applicable law, the Company may issue redeemable shares and
redeem the same.
TRANSFER OF SHARES
15. Effectiveness of Transfer of Shares
A transfer of title to shares of the Company, whether voluntarily or by
operation of law, shall not confer upon the transferee any rights whatsoever
towards the Company unless and until such time as the transfer has been approved
by the Board of Directors, who shall have the absolute and unfettered discretion
either to approve or disapprove any such transfer.
16. Registration of Transfer
A transfer of title to shares of the Company, if approved by the Board of
Directors, shall be recorded in the Register of Members.
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17. Procedure on Voluntary Transfer of Shares
A member desiring to transfer to another person title to his shares, or
any part thereof, shall give the Company a notice to this effect and furnish the
Company with an instrument of transfer, in a form to be prescribed by the Board
of Directors, duly executed by such member and the transferee.
18. Procedure on Transfer of Shares by Operation of the Law
Any person becoming entitled to shares of the Company by operation of law
who desires to be registered as a member in respect thereof, shall furnish the
Company with evidence, to the satisfaction of the Board of Directors, of his
title to the shares.
GENERAL MEETINGS
19. Annual General Meeting
An Annual General Meeting shall be held once in every calendar year at
such time (within a period of not more than fifteen (15) months after the last
preceding Annual General Meeting) and at such place as may be determined by the
Board of Directors.
20. Extraordinary General Meeting
(a) All General Meetings other than Annual General Meetings shall be
called "Extraordinary General Meetings".
(b) The Board of Directors may, whenever it thinks fit, convene an
Extraordinary General Meeting, and shall be obliged to do so upon receipt of
requisition in writing in accordance with Section 109 of the Ordinance.
(c) Members of the Company shall not be authorised to convene a General
Meeting except as stated in Section 110 of the Ordinance.
21. Notice of General Meeting
(a) Not less than seven (7) days' prior written notice shall be given of
any General Meeting to those Members entitled to attend thereat. Each such
notice shall specify the place, the day and the hour of the General Meeting and
the general nature of the matters to be discussed thereat. If the General
Meeting is to consider the passing of a Special or Extraordinary Resolution, the
notice shall set out the terms of such resolution.
(b) The accidental omission to give notice of a meeting, or the
non-receipt of notice by any member entitled to receive notice, shall not
invalidate the proceedings at such meeting.
(c) A member entitled to receive notices of General Meetings may waive
such right, generally or in respect of a specific General Meeting, and shall be
deemed to have waived such right with respect to any General Meeting at which he
was present, in person or by proxy.
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22. Quorum
(a) One or more members present in person or by proxy and holding shares
conferring in the aggregate more than fifty percent (50%) of the voting power of
the Company, shall constitute a quorum at General Meetings. No business shall be
considered or transacted at a General Meeting, or at any adjournment thereof,
unless the requisite quorum is present when the meeting proceeds to business.
(b) If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting shall, if convened upon requisition under
Section 110 of the Ordinance, be dissolved, but in any other case it shall stand
adjourned to the same day in the next week, at the same time and place. The
requisite quorum at an adjourned General Meeting shall be one or more members,
present in person or by proxy, holding at least one share. The only business to
be considered at an adjourned General Meeting shall be those matters which might
have been lawfully considered and/or transacted at the General Meeting
originally called if a requisite quorum had been present and adopt only such
types of resolutions which could have been adopted at the General Meeting
originally called.
23. Chairman
The Chairman, if any, of the Board of Directors or another person
appointed by the Board of Directors, shall preside as Chairman at every General
Meeting of the Company. The Chairman of any General Meeting shall not be
entitled to a second or casting vote.
24. Adoption of Resolutions at General Meetings
(a) An Ordinary Resolution shall be deemed adopted if supported by members
vested with more than fifty percent (50%) of the total voting power attached to
the shares whose holders were present, in person or by proxy, at such meeting
and voted thereon.
(b) A Special or Extraordinary Resolution shall he deemed adopted if
supported by members vested with seventy-five percent (75%) or more of the total
voting power attached to the shares whose holders were present, in person or by
proxy, at such meeting and voted thereon; provided, however, that an adoption of
a Special Resolution shall be subject to a 21 days' prior notice of the General
Meeting, as provided for in Section 115(a) of the Ordinance.
(c) Any resolution put to the vote of a General Meeting shall be decided
on a show of hands unless a poll is demanded, prior to a vote by a show of
hands, by any member present in person or by proxy and entitled to vote at the
meeting.
(d) A declaration by the Chairman of the meeting that a resolution has
been carried or lost, shall be conclusive evidence of the fact without proof of
the proper contents of such a declaration or of the number or proportion of the
votes recorded in favor of or against such resolution.
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25. Resolutions in Writing
A resolution in writing agreed upon by all members of the Company then
entitled to vote at General Meetings, shall be deemed to have been adopted by a
General Meeting duly convened and held. Unless otherwise specified in the
resolution, same shall be deemed to have been adopted as an Ordinary Resolution.
26. Voting Power
Subject to the provisions of Article 27(a) below and subject to any other
provision hereof pertaining to voting rights attached to shares of the Company,
whether in general or in regards to a specific matter or matters, every member
shall have one vote for each share registered in his name on the Register of
Members, without regard to its nominal value, whether the vote is conducted by a
show of hands or by a poll.
27. Attendance and Voting Rights at General Meetings
(a) No member shall be entitled to be present or vote at a General Meeting
(or be counted as a part of the quorum thereat) unless all calls duly made and
other sums then payable by him in respect of his shares in the Company have been
paid up.
(b) A corporate body being a Member of the Company and entitled to vote at
or attend a General Meeting may exercise such rights by authorizing any person,
whether in general or for a specific General Meeting, to be present or vote on
its behalf. Upon the request of the Chairman of the General Meeting, written
evidence of such authorization and its validation (in a form acceptable to the
Chairman) shall be delivered to him.
(c) (1) A member entitled to vote at or attend a General Meeting may
appoint a proxy, whether in general or for a specific General Meeting, to
exercise such rights.
(2) The appointment of a proxy shall be in writing and shall be in
the following form:
"I, the undersigned, ________________________, being a member of
(name of member)
___________________________ hereby appoint ____________________, of
(name of company) (name of proxy)
__________________________ as my proxy to attend [and vote] on my behalf
(address of proxy)
at [any General Meeting of the Company] [the General Meeting to be held
on the _____ day of _________, 19__] and at any adjournment thereof.
Signed this ____ day of ___________, 19__ ______________________
(signature of member)"
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(3) The instrument appointing a proxy shall be delivered to the
Company not less than forty-eight (48) hours before the time designated for the
pertinent General Meeting at which the person named in the instrument proposes
to attend.
(4) A proxy may not delegate his powers to any other person.
(5) Termination of the appointment of a proxy shall be governed by
the provisions of Section 14 of the Agency Law, 5725-1965.
(d) If two or more persons are registered as joint owners of any share,
the right to attend the General Meeting, if attached to such share, shall be
conferred upon all of the joint holders, but the right to vote at the General
Meeting, if attached to such share, shall be conferred exclusively upon the
senior amongst the joint holders attending the General Meeting, in person or by
proxy; and for this purpose seniority shall be determined by the order in which
the names stand on the Register of Members.
BOARD OF DIRECTORS
28. Powers of Board of Directors
(a) The Board of Directors shall be vested with the exclusive authority to
exercise all of the Company's powers which are not, by the Ordinance, the
Memorandum, the Articles or any applicable law, required to be exercised or done
by the Company in General Meeting.
(b) Without derogating from the above, the management of the business of
the Company shall be vested exclusively in the Board of Directors.
29. Exercise of Powers of Board of Directors
(a) The powers conferred upon the Board of Directors shall be vested in
the Board as a collective body, and not in each one or more of the directors
individually, and all such powers may be exercised by the Board of Directors by
passing resolutions in accordance with the provisions of the Articles.
(b) A resolution proposed at any meeting of the Board of Directors shall
be deemed to have been passed by the Board if voted for by a majority of the
directors attending such meeting.
(c) A resolution in writing to which all of the directors then in office
have given their written consent shall be deemed to have been unanimously
adopted by the Board of Directors in a meeting duly convened and held.
30. Committees of Directors
The Board of Directors may delegate any or all of its powers to
committees, each consisting of two or more Directors, and it may, from time to
time, revoke or alter the powers so delegated. Each committee shall, in the
exercise of the powers so delegated, conform to any regulations as may be
prescribed from time to time by the Board of Directors.
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31. Number of Directors
Until otherwise determined by Special Resolution of the Company, the Board
of Directors shall consist of not less than 1 but not more than 6.
32. Appointment and Removal of Directors
(a) The directors shall be elected, from time to time, by Ordinary Resolution
passed at a General Meeting of the Company. Likewise, removal of any director or
filling vacancy, however created, in the Board of Directors shall be effected by
Ordinary resolution of the Company in its General Meeting.
(b) Notwithstanding the provisions of Article 32(a), the holders of shares
conferring a majority of total voting power attached to all of the shares of the
Company, may, from time to time, appoint directors, remove directors and fill
any vacancy, however created, in the Board of Directors.
(c) The powers conferred pursuant to Article 32(b) shall be exercisable by
serving the Company with written notice and shall take effect on the date
specified in such notice, or upon the delivery to the Company, whichever is the
later.
(d) The first members of the Board of Directors, as from the date of
incorporation of the Company, shall be:
(1) Mark Hughes
(2) Larry Thompson
(3) Christopher Pair
33. Qualification of Directors
No person shall be disqualified to serve as a director by reason of his
not holding shares in the Company or by reason of his having served as a
director in the past.
34. Effect of Vacancy
In the event of a vacancy, however created, in the Board of Directors, the
remaining directors, if not less than the requisite quorum as provided in
Article 41 hereof, may continue to act in every matter.
35. Vacation of Director's Office
The office of a director shall he vacated:
(1) upon his death;
(2) on the date at which he is declared a bankrupt or, if the director is
a corporation, is put in liquidation;
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(3) on the date he is declared legally incapacitated;
(4) on the date as fixed in the resolution electing him to his office or
in the notice of his appointment, as the case may be;
(5) on the date fixed in the resolution or notice of his removal or on the
date of receipt of such notice by the Company, whichever is later;
(6) on the date fixed in a written notice of resignation given by him to
the Company or on the date of receipt of such notice by the Company, whichever
is later.
36. Remuneration of Directors
No director shall be paid any remuneration by the Company for his services
as Director except as may be otherwise provided by the Board of Directors.
37. Conflict of Interests
(a) A director having, directly or indirectly, an interest in any existing
transaction to which the Company is a party, or in which the Company has an
interest, shall give the Company a notice thereof disclosing the nature of his
interest in the transaction.
(b) A director shall not be disqualified from holding his office by virtue
of having an interest in any such transaction, nor shall he be deprived of his
right to attend a meeting at which such transaction is considered, to be counted
at the quorum present at the meeting or to express his opinion in the matter;
but he shall not be entitled to vote for or against such transaction or in
respect of any matter relating thereto.
(c) The deprivation of the voting right as provided in Article 37(b) shall
not apply to:
1. any arrangement for giving any director a security, a guarantee
or an indemnity in respect of moneys lent by him to the Company or obligations
undertaken by him for the benefit of the Company;
2. any arrangement for giving any third party a security, a
guarantee or an indemnity in respect of an indebtedness of the Company for which
the director has assumed responsibility, in whole or in part, by way of a
guarantee, an indemnity or giving a security;
3. any transaction, the subject matter of which is the issuance of
shares or debentures to any director.
(d) A director may hold any other office under the Company, whether with
or without remuneration, and may enter into an agreement with the Company with
respect to the terms of his appointment to such office. The provisions of
Article 37(b) shall apply to any meeting of the Board of Directors whereat a
director is appointed to hold such office or whereat the terms of any such
appointment are considered and determined.
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(e) A director may be engaged by the Company in rendering professional
services to the Company, whether with or without remuneration, and may enter
into an agreement with the Company with respect to the terms of his engagement.
The provisions of Article 37(b) shall apply to any meeting of the Board of
Directors whereat such engagement of a director and its terms are considered and
determined.
38. Alternate Director
(a) A director may, by written notice to the Company, appoint an alternate
for himself (hereinafter referred to as "Alternate Director"), remove such
Alternate Director and appoint another Alternate Director in place of any
Alternate Director appointed by him whose office has been vacated for any reason
whatsoever. Unless the appointing director, by the instrument appointing an
Alternate Director or by written notice to the Company, limits such appointment
to a specified period of time or restricts it to a specified meeting or action
of the Board of Directors, or otherwise restricts its scope, the appointment
shall be for an indefinite period, and for all purposes.
(b) Any notice given to the Company pursuant to Article 38(a) shall become
effective on the date fixed therein or upon receipt thereof by the Company,
whichever is later.
(c) An Alternate Director shall have all the rights and obligations of the
director who appointed him, provided, however, that he may not in turn appoint
an alternate for himself (unless the instrument appointing him otherwise
expressly provides), and provided further that an Alternate Director shall have
no standing at any meeting of the Board of Directors of any Committee thereof
while the director who appointed him is present.
(d) Any person, whether or not he be a member of the Board of Directors,
may act as an Alternate Director. One person may act as Alternate Director for
several directors, and in such event he shall have a number of votes (and shall
be treated as the number of persons for purposes of establishing a quorum) equal
to the number of directors for whom he acts as Alternate Director. If an
Alternate Director is also a director in his own right, his rights as an
Alternate Director shall be in addition to his rights as a director.
(e) An Alternate Director shall alone be responsible for his own acts and
defaults, and he shall not be deemed the agent of the director(s) who appointed
him.
(f) The office of an Alternate Director shall be vacated under the
circumstances, mutatis mutandis, set forth in Article 35, and such office shall
ipso facto be vacated if the director who appointed such Alternate Director
ceases to be a director.
39. Meetings of the Board of Directors
Subject to Articles 40 and 41 below, the Board of Directors may meet,
adjourn its meetings and otherwise regulate such meetings and proceedings as it
deems fit.
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40. Convening Meetings of the Board of Directors
(a) The Chairman of the Board or any number of directors constituting not
less than one-third of the whole Board of Directors may, at any time, convene a
meeting of the Board of Directors, by giving to each of the other directors at
least four (4) days' prior notice thereof. Such notice shall specify the exact
time and place of the meeting so called and the general nature of the business
to be considered and transeted thereat.
(b) The accidental omission to give notice of a meeting, or the
non-receipt of notice by any director, shall not invalidate the proceedings at
such meeting.
(c) A director may waive his right to receive notice of any meeting, in
general or in respect of a specific meeting, and shall be deemed to have waived
such right with respect to any meeting at which he was present.
41. Quorum
A majority of the number of directors as specified in or determined
pursuant to Article 31 hereof (as the case may be) shall constitute a quorum at
meetings of the Board of Directors. No business shall be considered or
transacted at any meeting of the Board of Directors unless the requisite quorum
is present when the meeting proceeds to business.
42. Chairman of the Board of Directors
The Board of Directors may from time to time elect one of its members to
be the Chairman of the Board of Directors, remove such Chairman from office and
appoint another in his place. The Chairman of the Board of Directors shall
preside at every meeting of the Board of Directors, but if there is no such
Chairman, or if at any meeting he is not present, or if he is unwilling to take
the chair, the directors present shall choose one of their number to be the
chairman of such meeting.
43. Validity of Acts of Directors Despite Defects
All acts done bona fide at any meeting of the Board of Directors, or of a
Committee of the Board of Directors shall, notwithstanding that it may
afterwards be discovered that there was some defect in the appointment of the
participants, or any of them, in such meetings, or that they, or any of them,
were disqualified, be as valid as if there was no such defect or
disqualification.
GENERAL MANAGER
44. General Manager
(a) The Board of Directors may, from time to time, appoint one or more
persons, whether or not directors, as General Manager(s) of the Company, either
for a fixed term or without any limitation of time, and may confer powers,
authorities and rights or impose duties upon such person or persons and fix his
or their salaries and emoluments as the Board of Directors may deem fit.
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(b) Notwithstanding the provisions of any agreement between the General
Manager and the Company, the Company shall be vested with the power, exercisable
by a resolution of the Board of Directors, to remove the General Manager from
his office or to revoke or alter his powers, authorities, rights, duties or
salary.
MINUTES
45. Minutes
(a) The proceedings of each General Meeting, meeting of the Board of
Directors and meeting of Committee of Directors shall be recorded in the minutes
of the Company. Such minutes shall set forth the names of the persons present at
every such meeting and all resolutions adopted thereat and shall be signed by
the chairman of that meeting.
(b) Any minutes purporting to be executed and signed as aforesaid, shall
constitute evidence that the meeting was duly held and conducted as recorded in
the minutes, unless proven otherwise.
DIVIDENDS AND PROFITS
46. Declaration of Dividends
(a) The Board of Directors may from time to time declare such interim
dividend as may appear to the Board of Directors to be justified by the profits
of the Company.
(b) The General Meeting may, by Ordinary Resolution, declare a final
dividend for a fiscal year of the Company, provided that the amount of dividend
so declared does not exceed the amount of final dividend proposed by the Board
of Directors.
(c) Subject to any special or qualified rights conferred upon the holders
of shares as to dividends, all dividends shall be declared and paid according to
the amounts paid on the shares in respect whereof the dividends are declared and
paid, but where no amount has been paid on account of any shares whatsoever,
dividends may be declared and paid up according to the nominal value of the
shares. Where an amount has been prepaid on account of shares and the Company
agrees to pay interest to the holder thereof by reason of such prepayment, the
amount so prepaid shall not be deemed, for the purposes of this Article, to be
payment on account of such shares.
(d) Notice of the declaration of a dividend shall be given to all those
entitled to such dividend.
47. Payment of Dividends Exclusively from Profits
No dividend shall be paid otherwise than out of the profits of the
Company.
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48. Interest on Dividend
The Company shall not be obliged to pay and shall not pay interest on any
declared dividend.
49. Payment of Dividends
Subject to Article 50, any declared dividend may be paid by check to the
order of the person entitled to receive such dividend (and if there are two or
more persons entitled to the dividend in respect of the same share - to the
order of any one of such persons) or to the order of such person as the person
entitled thereto may by writing direct. Every such check shall be sent to the
address of the payee, as notified to the Company.
50. Payment in Specie
Upon the recommendation of the Board of Directors approved by Ordinary
Resolution of the Company in its General Meeting, a dividend may be paid, in
full or in part, by the distribution of specific assets of the Company or by
distribution of shares or debentures of the Company or of any other company, or
in any one or more of such ways.
51. Setting-Off Dividends
Where the Company is obliged to pay dividends or other amounts in respect
of shares, same may be set-off by the Company against any indebtedness, however
arising, liquidated or non-liquidated, of the person entitled to receive the
dividend.
The provisions contained in this Article shall not prejudice the right of
the Company to other remedies available to it pursuant to the Articles or any
applicable law.
52. Unclaimed Dividends
(a) Dividends unclaimed by the person entitled thereto within thirty (30)
days after the date they become payable, may be invested or otherwise used by
the Company, as it deems fit, until claimed; but the Company shall not be deemed
a trustee in respect thereof.
(b) Any dividend unclaimed after a period of seven (7) years from the date
the same become payable, shall be forfeited and shall revert to the Company,
unless otherwise directed by the Board of Directors.
53. Reserves and Funds
(a) The Board of Directors may, before recommending distribution of any
dividend, resolve to set aside out of the profits of the Company or out of an
asset revaluation fund and carry to reserve or reserves such sums as it deems
fit, and direct the designation, application and use of such sums. The Board of
Directors may also determine that any such sums which it deems prudent not to
distribute as dividends, be carried forward and remain as such at the disposal
of the Company, without placing same to reserve.
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(b) The Board of Directors may, from time to time, direct the revaluation
of the assets of the Company, in whole or in part, and create an assets
revaluation fund out of the revaluation surplus, if any.
54. Capitalization of Profits
(a) Upon the recommendation of the Board of Directors, the Company in
General Meeting may resolve that it desires to capitalize all or any part of its
moneys or assets standing to the credit of any reserve fund or to the credit of
the profit and loss account or otherwise available for distribution as dividend
(including moneys or assets received as premiums on shares or debentures), and
direct accordingly that such moneys or assets be set free for distribution
amongst the members who would have been entitled thereto if distributed by way
of dividend and in the same proportion, on condition that same be not paid in
cash or in specie but be applied towards paying up any amounts for the time
being unpaid on any issued shares held by such members and/or towards paying up
in full the consideration (as shall be fixed in said resolution) for shares or
debentures of the Company to be issued to such members credited as fully paid
up.
(b) Whenever such a resolution as aforesaid shall have been passed, the
Board of Directors shall make all appropriations and applications of the moneys
or assets resolved to be capitalized thereby, and generally shall do all acts
and things required to give effect thereto. The Board of Directors may authorize
any person to enter on behalf of all members entitled thereto to an agreement
with the Company providing for the issuance of any shares or debentures,
credited as fully paid, to which they may be entitled upon such capitalization
or for the payment upon their behalf, by the application thereto of their
proportions of the moneys or assets resolved to be capitalized, of the amounts
or any part thereof remaining unpaid on their existing shares, and any agreement
made under such authority shall be effective and binding on all such members.
BRANCH REGISTERS
55. Authority to Keep Branch Registers
The Company may keep branch registers in any reciprocal state.
56. Provisions in Respect of Keeping Branch Registers
Subject to the provisions contained in part E of Chapter C of the
Ordinance, the Board of Directors shall be authorized to make such rules and
procedures in connection with the keeping of such branch registers as it may,
from time to time, think fit.
NOTICES
57. Notices in Writing
Unless otherwise prescribed by the Board of Directors, all notices
pursuant to the Articles shall be in writing.
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58. Addresses for Receipt of Notice
Each member and each director shall furnish the Company with an address
for the receipt of any notice, document or other communication relating to the
Company, its business or affairs.
59. Receipt of Notice
A person shall be deemed to have received any notice, document or other
communication if and when same comes to his attention or is received by him or
at the address furnished by him to the Company pursuant to Article 58.
The Company shall be deemed to have received any notice, document or other
communication if and when same is received at its registered address or
principal place of business.
INDEMNITY
60. Indemnity of Directors and Officers
The Company may indemnify any director or officer for the time being of
the Company against any liability incurred by him in defending any proceeding,
whether civil or criminal, in which judgment is given in his favor or in which
he is acquitted or in which relief under Section 90 of the Ordinance is granted
to him by the court.
WINDING UP
61. Distribution of Assets
If the Company be wound up, then, subject to the provisions of any
applicable law and to any special or restricted rights attached to a share, the
assets of the Company in excess of its liabilities shall be distributed among
the members in proportion to the paid-up capital of the Company attributable to
the shares in respect of which such distribution is being made. The paid-up
capital attributable to any share (whether issued at its nominal value, at a
premium or at a discount), shall be the nominal value of such share, provided,
however, that if less than the full issuance price of such share has been paid
to the Company, the paid-up capital attributable thereto shall be such
proportion of the nominal value as the amount paid to the Company on the share
bears to its full issuance price.
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We, the undersigned, are desirous of being formed into a Company in pursuance of
this Memorandum of Association, and we respectively agree to take the number of
shares set opposite our respective names:
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No. of
Name Address Shares Signature
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Herbalife 9800 La Cienega Blvd. 99 Herbalife
International, Inc. Inglewood, CA 90301 International, Inc.
U.S.A.
By /s/ Neil J. Wilkof
------------------------
Neil J. Wilkof, Adv.
pursuant to a power of
attorney dated 13.12.90
Herbalife 9800 La Cienega Blvd. 1 Herbalife
International of Inglewood, CA 90301 International of
America, Inc. U.S.A. America, Inc.
By /s/ Neil J. Wilkof
------------------------
Neil J. Wilkof, Adv.
pursuant to a power of
attorney dated 13.12.90
- --------------------------------------------------------------------------------
The 18 day of December, 1990.
Witness to signatures:
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