EXHIBIT 3.27
Commonwealth of The Bahamas IBC 01
The International Business Companies Act
(No. 45 of 2000)
Certificate of Incorporation (SECTION 16)
No. 132727 B
UP OFFSHORE (HOLDINGS) LTD.
I, JACINDA P. BUTLER, Assistant Registrar General, the Commonwealth of The
Bahamas do hereby certify pursuant to the International Business Companies Act
2000, (No. 45 of 2000) that all the requirements of the said Act in respect of
incorporation have been satisfied, and that
UP OFFSHORE (HOLDINGS) LTD.
is incorporated in the Commonwealth of The Bahamas as an International Business
Company this 12TH day of AUGUST, 2004
Given under my hand and seal
At Nassau in the Commonwealth
of The Bahamas
/s/ J. P. BUTLER
------------------------------
ASSISTANT REGISTRAR GENERAL
COMMONWEALTH OF THE BAHAMAS
NEW PROVIDENCE
COMPANY UNDER THE
INTERNATIONAL BUSINESS COMPANIES ACT 2000
File No. _______________________
Reg. No. _______________________
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
UP OFFSHORE (HOLDINGS) LTD.
INCORPORATED THE TWELFTH DAY OF AUGUST, A.D. 2004.
CERTIFICATE OF COMPLIANCE
PURSUANT TO SECTION 15 (7)
OF
THE INTERNATIONAL BUSINESS COMPANIES ACT, 2000
(NO. 45 OF 2000)
We, H & J CORPORATE SERVICES LTD., acting as Registered Agent of UP
OFFSHORE (HOLDINGS) LTD. (the "Company") hereby certify that the requirements of
the International Business Companies Act, 2000 (No.45 of 2000), in respect of
the registration of the Company have been complied with.
DATED THIS TWELFTH DAY OF AUGUST, A.D., 2004.
/s/ [ILLEGIBLE]
---------------------------------
FOR H & J CORPORATE SERVICES LTD.
REGISTERED AGENT
H & J CORPORATE SERVICES LTD.
SHIRLAW HOUSE
87 SHIRLEY STREET
NASSAU, BAHAMAS
COMMONWEALTH OF THE BAHAMAS
THE INTERNATIONAL BUSINESS COMPANIES ACT 2000
MEMORANDUM OF ASSOCIATION
OF
UP OFFSHORE (HOLDINGS) LTD.
1. The name of the Company is UP OFFSHORE (HOLDINGS) LTD.
REGISTERED OFFICE
2. The Registered Office of the Company will be at Shirlaw House, 87 Shirley
Street, Nassau, New Providence, The Bahamas, the postal address of which
is P.O. Box SS-19084, Nassau, New Providence, Bahamas.
REGISTERED AGENT
3. The Registered Agent of the Company will be H & J Corporate Services Ltd.,
Shirlaw House, 87 Shirley Street, Nassau, New Providence, The Bahamas, the
postal address of which is P.O. Box SS-19084, Nassau, New Providence,
Bahamas.
OBJECTS AND POWERS
4. (1) The objects for which the Company is established are to engage
in any act or activity that is not prohibited under any law for the
time being in force in The Bahamas.
(2) The Company shall have all such powers as are permitted by any law
for the time being in force in The Bahamas, irrespective of
corporate benefit, to perform all acts and engage in all activities
necessary or conducive to the conduct, promotion or attainment of
the objects or purposes of the Company.
(3) The directors may by resolution of directors exercise all the powers
of the Company to borrow money and to mortgage or charge its
undertakings and property or any part thereof to issue debentures,
debenture stock and other securities whenever money is borrowed or
as security for any debt, liability or obligation of the Company or
of any third party.
(4) Any mortgage or charge of the undertaking and property of the
Company shall for the purposes of Section 80 of the Act be regarded
as in the usual or regular course of the business carried on by the
Company.
CURRENCY
5. Shares in the Company shall be issued in the currency of United States
Dollars.
AUTHORISED CAPITAL
6. The authorised capital of the Company is US$5,000.00.
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CLASSES, NUMBER AND PAR VALUE OF SHARES
7. The authorised capital is made up of one class of shares divided into
5,000 shares of US$1.00 each par value with one vote for each share.
SHARE RIGHTS AND LIMITATIONS
8. The designations, powers, preferences, rights, qualifications, limitations
and restrictions of each class and series of shares that the Company is
authorised to issue shall be fixed by resolution of directors but the
directors shall not allocate different rights as to voting, dividends,
redemption or distributions on liquidation between the shares of the
Company unless the Memorandum of Association shall have been amended to
create separate classes of shares and shares of each separate class and
series shall have identical rights as to voting, dividends, redemption and
distributions.
VARIATION OF CLASS RIGHTS
9. If at any time the authorised capital is divided into different classes or
series of shares, the rights attached to any class or series (unless
otherwise provided by the terms of issue of the shares of that class or
series) may, whether or not the Company is being wound up, be varied with
the consent in writing of the holders of not less than three-fourths of
the issued shares of that class or series and of the holders of not less
than three-fourths of the issued shares of any other class or series of
shares which may be affected by such variation.
10. 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.
REGISTERED SHARES
11. Shares may be issued only as registered shares.
LIABILITY OF MEMBERS
12. The liability of members is limited to the amount, if any, unpaid on the
shares respectively held by them.
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION
13. The Company may amend its Memorandum of Association and Articles of
Association by a resolution of members or by a resolution of the
directors.
DEFINITIONS
14. The meanings of words in this Memorandum of Association are as defined in
the Articles of Association of the Company.
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We, the subscribers whose names are subscribed are desirous of
incorporating an International Business Company under the laws of The Bahamas in
pursuance of this Memorandum of Association.
AS WITNESS our hands this 12th day of August, A.D. 2004.
Subscriber Subscriber
LEX LTD. LEGIS LTD.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------- ---------------------------
Its Authorised Signatory Its Authorised Signatory
WITNESS to the above signatures:
/s/ Gwyneth V. Saunders
---------------------------
Gwyneth V. Saunders
P.O. Box SS-19084
Nassau, Bahamas
COMMONWEALTH OF THE BAHAMAS
REGISTRAR GENERAL'S DEPARTMENT
I certify the foregoing to be a true copy of
the original document.
/s/ [ILLEGIBLE]
----------------------------------------
Registrar General
AUG 12 2004
COMMONWEALTH OF THE BAHAMAS
THE INTERNATIONAL BUSINESS COMPANIES ACT 2000
ARTICLES OF ASSOCIATION
OF
UP OFFSHORE (HOLDINGS) LTD.
TABLE OF CONTENTS
ARTICLE DESCRIPTION PAGE
- ------- ----------- ----
- - Table of Contents
1-6 Definitions 2-3
7 Private Company 3
8-10 Registered Shares 3-4
11-21 Shares, Authorised Capital and Capital 4-5
22-24 Lien on Shares 5
25-29 Transfer of Shares 6
30-34 Transmission of Shares 6-7
35-40 Reduction Or Increase in Authorised Capital 7
41-61 Members: Meetings and Consents 7-10
62-69 Directors 10
70-75 Powers of Directors 10-11
76-88 Proceedings of Directors 11-12
89-92 Officers 12-13
93-94 Conflict of Interests 13
95-97 Indemnification 13
98 Seal 13-14
99-108 Dividends 14
109-112 Accounts 14-15
113-120 Auditors 15
121 Notices 15
122 Pension and Superannuation Funds 16
123-124 Arbitration 16
125 Voluntary Winding-Up and Dissolution 16
126 Continuation 16
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DEFINITIONS
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following table
shall bear the meanings set opposite them respectively in the second
column thereof.
WORDS MEANING
Act The International Business Companies Act 2000 including any
modification, extension, re-enactment or renewal thereof and
any regulations made thereunder.
Articles These Articles of Association as they may from time to time be
amended.
capital The sum of the aggregate par value of all outstanding shares
with par value of the Company and shares with par value held
by the Company as treasury shares plus
(a) the aggregate of the amounts designated as capital of
all outstanding shares without par value of the Company
and shares without par value held by the Company as
treasury shares, and
(b) the amounts as are from time to time transferred from
surplus to capital by a resolution of directors.
member A person who holds shares in the Company.
Memorandum The Memorandum of Association of the Company as it may from
time to time be amended.
person An individual, a corporation, a trust, the estate of a
deceased individual, a partnership or an unincorporated
association of persons.
resolution (a) A resolution approved at a duly constituted meeting of
of directors directors or of a Committee of directors of the Company
by the affirmative vote of a simple majority of the
directors present who voted and did not abstain; or
(b) a resolution consented to in writing by a simple
majority of all directors or of all members of the
Committee of directors, as the case may be;
except where a director is given more than one vote, he shall
be counted by the number of votes he casts for the purpose of
establishing a majority.
resolution (a) A resolution approved at a duly constituted meeting of
of members the members of the Company by the affirmative vote of
(i) a simple majority of the votes of the members
present and entitled to vote thereon and who voted
and did not abstain; or
(ii) a simple majority of the votes of the members of
each class or series of shares present and
entitled to vote thereon as a class or series and
who voted and did not abstain and of a simple
majority of the votes of the remaining members
present and entitled to vote
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thereon and who voted and did not abstain; or
(b) a resolution consented to in writing by
(i) a simple majority of the votes of the members
entitled to vote thereon, or
(ii) a simple majority of the votes of the shareholders
entitled to vote thereon as a class and of a
simple majority of the votes of the remaining
members entitled to vote thereon;
Seal Any seal which has been duly adopted as the Common Seal of the
Company.
securities Shares and debt obligations of every kind, and options,
warrants and rights to acquire shares, or debt obligations.
surplus The excess, if any, at the time of the determination of the
total assets of the Company over the sum of its total
liabilities, as shown in its books of account, plus its issued
and outstanding share capital.
treasury shares Shares in the Company that were previously issued but were
repurchased, redeemed or otherwise acquired by the Company and
not cancelled.
2. "Written" or any term of like import includes words typewritten, printed,
painted, engraved, lithographed, photographed or represented or reproduced
by any mode of reproducing words in a visible form, including telex,
telefax, telegram, cable or other form of writing produced by electronic
communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear
the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
5. The realisable value in relation to the assets of the Company shall mean
such value as the directors may decide upon as the value of the assets,
which value in the absence of fraud shall be conclusive unless a question
of law is involved.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be issued
according to the provisions of the Memorandum.
PRIVATE COMPANY
7. The Company is registered as a private company, and accordingly:
(a) the right to transfer shares is restricted in the manner provided in
these Articles;
(b) the number of the members of the Company is limited to fifty.
Provided that where two or more persons hold one or more shares in
the Company jointly they shall for the purposes of this Article be
treated as a single member; and
(c) any invitation to the public to subscribe for any shares, debentures
or other securities of the Company is prohibited.
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REGISTERED SHARES
8. Subject to such conditions as the Directors may reasonably determine for
the issue of Certificates every member holding registered shares in the
Company shall be issued a certificate which shall be signed by a director
or officer of the Company and under the Seal specifying the share or
shares held by him and the signature of the director or officer and the
Seal may be stamped thereon.
9. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless
from any loss or liability which it or they may incur by reason of any
wrongful or fraudulent use or representation made by any person by virtue
of the possession thereof. If a share certificate for registered shares be
worn out or defaced, the directors may upon surrender thereof for
cancellation issue a new one in its stead and if it be lost or destroyed,
the directors may upon the loss or destruction being established to their
satisfaction and upon such indemnity being given to the Company as it by
resolution of directors may determine issue a new one in its stead.
10. If several persons are registered as holders of any shares, any one of
such persons may give an effectual receipt for any dividend payable in
respect of such shares.
SHARES, AUTHORISED CAPITAL AND CAPITAL
11. Subject to the provisions of these Articles and to any resolution of
members the unissued shares of the Company shall be at the disposal of the
directors who may without prejudice to any rights previously conferred on
the holders of any existing shares or class or series of shares offer,
allot, grant options over or otherwise dispose of shares to such persons,
at such times and upon such terms and conditions as the Company may by
resolution of directors determine.
12. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or other
binding obligation to contribute money or property or any combination of
the foregoing as shall be determined by a resolution of directors.
13. Shares in the Company may be issued for such amount of consideration as
the Company may from time to time by resolution of directors determine,
except that in the case of shares with par value, the amount shall not be
less than the par value, and in the absence of fraud the decision of the
directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved.
The consideration in respect of the shares with par value constitutes
capital to the extent of the par value and the excess constitutes surplus.
14. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company, shall
be treated for all purposes as having been issued for money equal to the
consideration received or deemed to have been received by the Company in
respect of the other share, debt obligation or security.
15. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the Company
may by resolution of directors determine.
16. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
17. Upon the issue by the Company of a share without par value, if an amount
is
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stated in the Memorandum to be authorised capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except
that the directors shall designate as capital an amount of the
consideration that is at least equal to the amount that the share is
entitled to as, a preference if any, in the assets of the Company upon
liquidation of the Company.
18. The Company may purchase, redeem or otherwise acquire and hold its own
shares but no purchase, redemption or other acquisition shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business and
the realisable value of the assets of the Company will not be less than
the sum of its total liabilities, other than deferred taxes, as shown in
the books of account.
19. A determination by the directors under the preceding Article is not
required where shares are purchased, redeemed or otherwise acquired
(a) pursuant to a right of a member to have his shares redeemed or to
have his shares exchanged for money or other property of the
Company;
(b) in exchange for newly issued shares in the Company;
(c) by virtue of the provisions of Section 81 of the Act; and
(d) pursuant to an order of the court.
20. Shares that the Company purchases, redeems or otherwise acquires pursuant
to Article 18 may be cancelled or held as treasury shares unless the
shares are purchased, redeemed or otherwise acquired out of capital
pursuant to Section 34 of the Act in which case they shall be cancelled.
21. Where shares in the Company are held by the Company as treasury shares or
are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the
election of directors of the other company, the members of the Company
shall not be entitled to vote in respect of such shares or to have
dividends paid thereon and such shares shall not be treated as outstanding
for any purpose except for purposes of determining the capital of the
Company.
LIEN ON SHARES
22. The Company shall have a first and paramount lien on every share issued
for a promissory note or for any other binding obligation to contribute
money or property or any combination thereof to the Company, and the
Company shall also have a first and paramount lien on every share standing
registered in the name of a member, whether singly or jointly with any
other person or persons, for all the debts and liabilities of such member
or his estate to the Company, whether the same shall have been incurred
before or after notice to the Company of any interest of any person other
than such member, and whether the time for the payment or discharge of the
same shall have actually arrived or not, and notwithstanding that the same
are joint debts or liabilities of such member or his estate and any other
person, whether a member of the Company or not. The Company's lien on a
share shall extend to all dividends payable thereon. The directors may at
any time either generally, or in any particular case, waive any lien that
has arisen or declare any share to be wholly or in part exempt from the
provisions of this Article.
23. In the absence of express provisions regarding sale in the promissory note
or other binding obligation to contribute money or property, the Company
may sell,
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in such manner as it may by resolution of directors determine, any share
on which the Company has a lien, but no sale shall be made unless some
sum in respect of which the lien exists is presently payable nor until the
expiration of twenty one days after a notice in writing, stating and
demanding payment of the sum presently payable and giving notice of the
intention to sell in default of such payment, has been served on the
holder for the time being of the share.
24. The net proceeds of the sale by the Company of any shares on which it has
a lien shall be applied in or towards payment or discharge of the binding
obligation in respect of which the lien exists so far as the same is
presently payable and any residue shall (subject to a like lien for debts
or liabilities not presently payable as existed upon the share prior to
the sale) be paid to the holder of the share immediately before such sale.
For giving effect to any such sale the directors may authorise some person
to transfer the share sold to the purchaser thereof. The purchaser shall
be registered as the holder of the share and he shall not be bound to see
to the application of the purchase money, nor shall his title to the share
be affected by any irregularity or invalidity in the proceedings in
reference to the sale.
TRANSFER OF SHARES
25. All transfers of shares may be effected by transfer in writing in the
usual common form, or in such other form as the Directors may accept, and
may be under hand only.
26. The instrument of transfer of a share shall be signed by or on behalf of
the transferor and transferee, and the transferor shall be deemed to
remain the holder of the share until the name of the transferee is entered
in the Register of Members in respect thereof.
27. The Directors may in their absolute discretion and without assigning any
reason therefor decline to register any transfer of shares (whether fully
paid or not) to a person of whom they shall not approve, and they may also
decline to register any transfer of shares on which the Company has a
lien. If the Directors refuse to register a transfer they shall within two
months after the date on which the transfer was lodged with the Company
send to the transferee notice of the refusal.
28. The Directors may decline to recognise any instrument of transfer,
unless:-
(a) The instrument of transfer is deposited at the office or such other
place as the Directors may appoint accompanied by the certificate of
the shares to which it relates, and such other evidence as the
Directors may reasonably require to show the right of the transferor
to make the transfer (and if the instrument of transfer is executed
by some other person on his behalf, the authority of that person so
to do); and
(b) The instrument of transfer is in respect of only one class of
shares.
All instruments of transfer which are registered may be retained by the
Company.
29. Notwithstanding anything to the contrary contained in these presents the
Directors may upon the written request of the transferor register a
transfer of shares without an instrument of transfer being produced to
them or lodged with the Company whether or not an instrument of transfer
has been executed.
TRANSMISSION OF SHARES
30. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognised by the Company as having any title to his share but they
shall not be entitled to exercise any rights as a member of the Company
until they
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have proceeded as set forth in the next following 3 Articles.
31. The production to the Company of any document which is evidence of probate
of the will, or letters of administration of the estate, or confirmation
as personal representative of a deceased member or of the appointment of a
guardian of an incompetent member or the trustee of a bankrupt member
shall be accepted by the Company even if the deceased, incompetent or
bankrupt member is domiciled outside The Bahamas if the document
evidencing the grant of probate or letters of administration, confirmation
as personal representative, appointment as guardian or trustee in
bankruptcy is issued by a foreign court which had competent jurisdiction
in the matter. For the purpose of establishing whether or not a foreign
court had competent jurisdiction in such a matter the directors may obtain
appropriate legal advice. The directors may also require an indemnity to
be given by the executor, administrator, guardian or trustee in
bankruptcy.
32. Any person becoming entitled by operation of law or otherwise to a share
or shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced as
may reasonably be required by the directors. An application by any such
person to be registered as a member shall for all purposes be deemed to be
a transfer of shares of the deceased, incompetent or bankrupt member and
the directors shall treat it as such.
33. Any person who has become entitled to a share or shares in consequence of
the death, incompetence or bankruptcy of any member may, instead of being
registered himself, request in writing that some person to be named by him
be registered as the transferee of such share or shares and such request
shall likewise be treated as if it were a transfer.
34. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and the
circumstances of the case.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL
35. The Company may amend the Memorandum to increase or reduce its authorised
capital and in connection therewith the Company may in respect of any
unissued shares, increase or reduce the number of such shares, increase or
reduce the par value of any such shares or effect any combination of the
foregoing.
36. The Company may amend the Memorandum to
(a) divide the shares, including issued shares, of a class or series
into a larger number of shares of the same class or series; or
(b) combine the shares, including issued shares, of a class or series
into a smaller number of shares of the same class or series;
Provided, however, that where shares are divided or combined under (a) or
(b) of this Article, the aggregate par value of the new shares must be
equal to the aggregate par value of the original shares.
37. The capital may by a resolution of directors be increased by transferring
an amount out of the surplus of the Company to capital.
38. Subject to the provisions of the 2 next succeeding Articles the capital
may by resolution of directors be reduced by:
(a) returning to members any amount received by the Company upon the
issue of any of its shares, the amount being surplus to the
requirements of the Company,
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(b) cancelling any capital that is lost or not represented by assets
having a realisable value or
(c) transferring capital to surplus for the purpose of purchasing,
redeeming or otherwise acquiring shares that the directors have
resolved to purchase, redeem or otherwise acquire.
39. No reduction of capital shall be effected that reduces the capital to an
amount that immediately after the reduction is less than the aggregate par
value of all outstanding shares with par value and all shares with par
value held by the Company as treasury shares and the aggregate of the
amounts designated as capital of all outstanding shares without par value
and all shares without par value held by the Company as treasury shares
that are entitled to a preference, if any, in the assets of the Company
upon liquidation of the Company.
40. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its business
and that the realisable value of the assets of the Company will not be
less than its total liabilities, other than deferred taxes, as shown in
the books of the Company and its remaining issued and outstanding share
capital.
MEETINGS AND CONSENTS OF MEMBERS
41. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside The
Bahamas as the directors consider necessary or desirable.
42. Upon the written request of members holding 10 percent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
43. The directors shall give not less than 7 days notice of meetings of
members to those persons whose names on the date of the notice is given
appear as members in the Share Register and are entitled to vote at the
meeting.
44. The directors may fix the date notice is given of a meeting of members as
the record date for determining those shares that are entitled to vote at
the meeting.
45. A meeting of members may be held in contravention of the requirement to
give notice if members holding not less than 90 percent of;
(a) the total number of shares of the members entitled to vote on all
matters to be considered at the meeting, or
(b) the votes of each class or series of shares where members are
entitled to vote thereon as a class or series together with an
absolute majority of the remaining votes,
have waived notice of the meeting; and for this purpose presence at the
meeting shall be deemed to constitute waiver.
46. The inadvertent failure of the directors to give notice of a meeting to a
member, or the fact that a member has not received notice, shall not
invalidate the meeting.
47. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member including otherwise than on a poll
and that proxy need not to be a member.
48. The instrument appointing a proxy shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the
person named in such instrument proposes to vote.
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49. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy. Only
members who are individuals may appoint proxies.
(NAME OF COMPANY)
I/We being a member of the above Company
With shares HEREBY APPOINT of or failing him
of
to be my/our proxy to vote for me/us at the meeting of members to be held
on the day of and at any adjournment thereof. (Any restrictions
on voting to be inserted here.)
Signed this day of
_______________
Member
50. The following shall apply in respect of co-ownership of shares:
(a) if 2 or more persons hold shares together each of them may be
present in person or by proxy at a meeting of members and may speak
as a member;
(b) if only one of them is present in person or by proxy he may vote on
behalf of all of them, and
(c) if 2 or more are present in person or by proxy they must vote as
one.
51. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other and recognise
each other's voice and for this purpose participation shall constitute
prima facie proof of recognition.
52. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy members representing not
less than 50 percent of the votes of the shares or class or series of
shares entitled to vote on resolutions of members to be considered at the
meeting. If a quorum be present, notwithstanding the fact that such quorum
may be represented by only one person then such person may resolve any
matter and a certificate signed by such person accompanied where such
person be a proxy by the proxy form or a copy thereof shall constitute a
valid resolution of members.
53. If within one hour from the time appointed for the meeting a quorum is not
present, the meeting, if convened upon the requisition of members, shall
be dissolved; in any other case it shall stand adjourned to the next
business day at the same time and place and if at the adjourned meeting
there are present within one hour from the time appointed for the meeting
in person or by proxy members representing not less than one third of the
votes of the shares or each class or series of shares entitled to vote on
the resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
54. At every meeting of members, the Chairman of the Board of Directors shall
preside as chairman of the meeting. If there is no Chairman of the Board
of Directors or if the Chairman of the Board of Directors is not present
at the meeting, the members present shall choose some one of their number
to be the chairman. If the members are unable to choose a chairman for any
reason, then the person representing the greatest number of voting shares
present in person or appointed under an instrument of proxy in prescribed
form at the meeting shall
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preside as chairman failing which the oldest individual member or
representative of a member present shall take the chair.
55. The chairman may, with the consent of the meeting, adjourn any meeting
from time to time, and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place.
56. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any member
present in person or by proxy who disputes the announcement by the
chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the chairman shall thereupon
cause a poll to be taken. If a poll is taken at any meeting, the result
thereof shall be duly recorded in the minutes of that meeting by the
chairman.
57. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any individual
to speak for or represent such member shall be determined by the law of
the jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the directors may
in good faith seek legal advice from any qualified person and unless and
until a court of competent jurisdiction shall otherwise rule, the
directors may rely and act upon such advice without incurring any
liability to any member.
58. Any person other than an individual which is a member of the Company may
by resolution of its directors or other governing body authorise such
person as it thinks fit to act as its representative at any meeting of the
Company or of any class of members of the Company, and the person so
authorised shall be entitled to exercise the same powers on behalf of the
person which he represents as that person could exercise if it were an
individual member of the Company.
59. The chairman of any meeting at which a vote is cast by proxy or on behalf
of any person other than an individual may call for a copy of such proxy
or authority authenticated by the certificate of a Notary which shall be
produced within 7 days of being so requested or the votes cast by such
proxy or on behalf of such person shall be disregarded.
60. Directors of the Company may attend and speak at any meeting of members of
the Company and at any separate meeting of the holders of any class or
series of shares in the Company.
61. An action that may be taken by the members at a meeting may also be taken
by a resolution of members consented to in writing without the need for
any notice, but if any resolution of members is adopted otherwise than by
the unanimous written consent of all members, a copy of such resolution
shall forthwith be sent to all members who shall not have had the
opportunity of consenting or objecting to such resolution.
DIRECTORS
62. The first directors of the Company shall be elected by the subscribers to
the memorandum; and thereafter, the directors shall be elected by the
members or the directors for such term as the members or the directors, as
the case may be, determine.
63. The minimum number of directors shall be one and the maximum number shall
be 7.
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64. Each director shall hold office for the term, if any, fixed by resolution
of members or by resolution of directors, as the case may be, or until his
earlier death, resignation or removal, or in the case of a company upon
the making of an order for the winding up or dissolution of the company or
upon the removal of a defunct company by the Registrar otherwise than
pursuant to a winding up order.
65. A director may be removed from office, with or without cause, by a
resolution of members.
66. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from the
date the notice is received by the Company or from such later date as may
be specified in the notice.
67. A vacancy in the Board of Directors may be filled by a resolution of
members or by a resolution of a majority of the remaining directors.
68. The directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
69. A director shall not require a share qualification, and may be an
individual or a company.
POWERS OF DIRECTORS
70. The business and affairs of the Company shall be managed by the directors
who may pay all expenses incurred preliminary to and in connection with
the formation and registration of the Company and may exercise all such
powers of the Company as are not by the Act or by the Memorandum or these
Articles required to be exercised by the members of the Company, subject
to any delegation of such powers as may be authorised by these Articles
and to such requirements as may be prescribed by a resolution of members;
but no requirement made by a resolution of members shall prevail if it be
inconsistent with these Articles nor shall such requirement invalidate any
prior act of the directors which would have been valid if such requirement
had not been made.
71. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company and the directors may remove any such person so appointed.
72. Every officer or agent of the Company has such powers and authority of the
directors, including the power and authority to affix the Seal, as are set
forth in these Articles or in the resolution of directors appointing the
officer or agent but the directors may revoke or vary such powers. No
officer or agent has any power or authority with respect to matters
requiring a resolution under this Article or under Articles 69, 72 and 76.
73. Any director which is a body corporate may appoint in writing any person
its duly authorised representative for the purpose of representing it at
meetings of the Board of Directors and the person so appointed shall be
entitled to exercise the same powers on behalf of such body corporate as
the body corporate could exercise if it were an individual director.
74. The continuing directors may act notwithstanding any vacancy in their
body, save that if their number is reduced to their knowledge below the
number fixed by or pursuant to these Articles as the necessary quorum for
a meeting of directors, the continuing directors or director may act only
for the purpose of appointing directors to fill any vacancy that has
arisen or summoning a meeting of members.
75. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for moneys paid to the Company,
shall be signed,
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drawn, accepted, endorsed or otherwise executed, as the case may be, in
such manner as shall from time to time be determined by resolution of
directors.
PROCEEDINGS OF DIRECTORS
76. The directors or any Committee thereof may meet at such times and in such
manner and places within or outside The Bahamas as the directors may
determine to be necessary or desirable.
77. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other and recognise
each other's voice and for this purpose participation shall constitute
prima facie proof of recognition.
78. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors entitled
to vote at the meeting who do not attend, waive notice of the meeting and
for this purpose, the presence of a director at a meeting shall constitute
waiver on his part. The inadvertent failure to give notice of a meeting to
a director, or the fact that a director has not received the notice, shall
not invalidate the meeting.
79. A director may by a written instrument appoint an alternate who need not
be a director and who shall be entitled to attend meetings in the absence
of the director who appointed him and to vote or consent in the place of
the director.
80. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate
not less than one half of the total number of directors, unless there are
only 2 directors in which case the quorum shall be 2. Where any director
is participating in a meeting in accordance with the provisions of Article
77 he shall be counted for the purpose of determining whether the meeting
is duly constituted.
81. If the Company shall have only one director the provisions herein
contained for meetings of the directors and shall not apply but such sole
director shall have full power to represent and act for the Company in all
matters as are not by the Act or the Memorandum or these Articles required
to be exercised by the members of the Company in lieu of minutes of a
meeting shall record in writing and sign a note or memorandum of all
matters requiring a resolution of directors. Such a note or memorandum
shall constitute sufficient evidence of such resolution for all purposes.
82. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Deputy Chairman of the Board of Directors shall
preside. If there is no Deputy Chairman of the Board of Directors or if
the Deputy Chairman of the Board of Directors is not present at the
meeting the directors present shall choose some one of their number to be
chairman of the meeting.
83. An action that may be taken by the directors or a Committee of directors
at a meeting may also be taken by a resolution of directors or of a
Committee of directors consented to in writing without the need for any
notice and a resolution of directors consented to in writing as aforesaid
may consist of several documents in like form (though they may differ by
the means by which they are communicated). If any resolution of directors
is adopted otherwise than by the unanimous written consent of all
directors a copy of such resolution shall forthwith be sent to any
director who shall not have had the opportunity of consenting or objecting
to such resolution.
84. The directors shall cause the following corporate records to be kept:
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(a) minutes of all meetings of directors, members, committees of
directors, committees of officers and committees of members;
(b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees of
members; and
(c) such other accounts and records as the directors by resolution of
directors consider necessary or desirable in order to reflect the
financial position of the Company.
85. The books, statutory registers, records and minutes shall be kept at the
registered office of the Company.
86. The directors may, by resolution of directors, designate one or more
Committees, each consisting of one or more directors.
87. Each Committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are set
forth in the resolution of directors establishing the Committee, except
that no Committee has any power or authority to amend the Memorandum or
these Articles, to appoint directors or fix their emoluments, or to
appoint officers or agents of the Company.
88. The meetings and proceedings of each Committee of directors consisting of
2 or more directors shall be governed mutatis mutandis by the provisions
of these Articles regulating the proceedings of directors so far as the
same are not superseded by any provisions in the resolution establishing
the Committee.
OFFICERS
89. The Company may by resolution of directors appoint officers of the Company
at such time as shall be considered necessary or expedient. Such officers
may consist of a Chairman of the Board of Directors, a Deputy Chairman of
the Board of Directors, a President and one or more Vice Presidents,
Secretaries and Treasurers and such other officers as may from time to
time be deemed desirable. Any number of offices may be held by the same
person.
90. The officers shall perform such duties as shall be prescribed at the time
of their appointment subject to any modification in such duties as may be
prescribed thereafter by resolution of directors or resolution of members,
but in the absence of any specific allocation of duties it shall be the
responsibility of the Chairman of the Board of Directors to preside at
meetings of directors and members, the Deputy Chairman to act in the
absence of the Chairman, the President to manage the day to day affairs of
the Company, the Vice Presidents to act in order of seniority in the
absence of the President but otherwise to perform such duties as may be
delegated to them by the President, the Secretaries to maintain the Share
Register, minute books and records (other than financial records) of the
Company and to ensure compliance with all procedural requirements imposed
on the Company by applicable law, and the Treasurer to be responsible for
the financial affairs of the Company.
91. The emoluments of all officers shall be fixed by resolution of directors.
92. The officers of the Company shall hold office until their successors are
duly elected, but any officer elected or appointed by the directors may be
removed at any time, with or without cause, by resolution of directors.
Any vacancy occurring in any office of the Company may be filled by
resolution of directors.
CONFLICT OF INTERESTS
93. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest or
to whom any director is related, including as a director of that other
person, is void or
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voidable for this reason only or by reason only that the director is
present at the meeting of directors or at the meeting of the Committee of
directors that approves the agreement or transaction or that the vote or
consent of the director is counted for that purpose if the material facts
of the interest of each director in the agreement or transaction and his
interest in or relationship to any other party to the agreement or
transaction are disclosed in good faith or are known by the members
entitled to vote at a meeting of members and the agreement or transaction
is approved or ratified by a resolution of members.
94. A director who has an interest in any particular business to be considered
at a meeting of directors or members may be counted for purposes of
determining whether the meeting is duly constituted.
INDEMNIFICATION
95. Subject to the limitations hereinafter provided the Company may indemnify
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred in connection
with legal or administrative proceedings any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil or
administrative, by reason of the fact that the person is or was a
director, an officer or a liquidator of the Company; or
(b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was acting
for, another company or a partnership, joint venture, trust or other
enterprise.
96. The Company may only indemnify a person if the person acted honestly and
in good faith with a view to the best interests of the Company.
97. The Company may purchase and maintain insurance in relation to any person
who is or was a director, an officer or a liquidator of the Company, or
who at the request of the Company is or was serving as a director, an
officer or a liquidator of, or in any other capacity is or was acting for,
another company or a partnership, joint venture, trust or other
enterprise, against any liability asserted against the person and incurred
by the person in that capacity, whether or not the Company has or would
have had the power to indemnify the person against the liability as
provided in these Articles.
SEAL
98. The Company may have more than one Seal and references herein to the Seal
shall be references to every Seal which shall have been duly adopted by
resolution of directors. The directors shall provide for the safe custody
of the Seal and for an imprint thereof to be kept at the registered
office. Except as otherwise expressly provided herein the Seal when
affixed to any written instrument shall be witnessed and attested to by
the signature of a director or an officer or any other person so
authorised from time to time by resolution of directors. Such
authorisation may be before or after the Seal is affixed, may be general
or specific and may refer to any number of sealings. The directors may
provide for a stamp of the Seal and of the signature of any director,
officer or authorised person which may be reproduced by printing or other
means on any instrument and it shall have the same force and validity as
if the Seal had been affixed to such instrument and the same had been
signed as hereinbefore described.
DIVIDENDS
99. The Company may by a resolution of directors declare and pay dividends in
money, shares, or other property. In the event that dividends are paid in
specie
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the directors shall have responsibility for establishing and recording in
the resolution of directors authorising the dividends, a fair and proper
value for the assets to be so distributed.
100. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the
Company.
101. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund,
and may invest the sum so set apart as a reserve fund upon such securities
as they may select.
102. No dividend shall be declared and paid unless the directors determine that
immediately after the payment of the dividend the Company will be able to
satisfy its liabilities as they become due in the ordinary course of its
business and the realisable value of the assets of the Company will not be
less than the sum of its total liabilities, other than deferred taxes, as
shown in its books of account, and its issued and outstanding share
capital.
103. Notice of any dividend that may have been declared shall be given to each
member in manner hereinafter mentioned and all dividends unclaimed for 3
years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
104. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of
which the Company holds directly or indirectly, shares having more than 50
percent of the vote in electing directors.
105. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
106. In the case of a dividend of authorised but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
107. In the case of a dividend of authorised but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors shall designate as capital an amount that is at least equal to
the amount that the shares are entitled to as a preference, if any, in the
assets of the Company upon liquidation of the Company.
108. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having a
proportionately smaller par value shall not constitute a dividend of
shares.
ACCOUNTS
109. The books of account, as shall be deemed necessary or desirable by the
directors to reflect the financial position of the Company shall be kept
at the registered office of the Company.
110. The directors shall if required by resolution of members cause to be made
out and shall serve on the members or lay before a meeting of members at
some date not later than three months after the date of the said
resolution a profit and loss account for the financial period stipulated
in the said resolution and a balance sheet as at the date to which the
profit and loss account is made up. The Company's profit and loss account
and balance sheet shall be drawn up so as to give respectively a true and
fair view of the profit or loss of the Company for that financial period,
and a true and fair view of the state of affairs of the Company as at the
end of that financial period.
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111. A copy of such profit and loss account and balance sheet shall where it is
not intended to be laid before a meeting of the members be served on every
member in the manner prescribed herein for notices calling a meeting of
members.
112. The Company may by a resolution of directors include in the computation of
surplus for any purpose the unrealised appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
AUDITORS
113. The Company may by resolution of members call for the accounts to be
examined by auditors.
114. The first auditors shall be appointed by resolution of directors;
subsequent auditors shall be appointed by a resolution of members.
115. The auditors may be members of the Company but no director or other
officer shall be eligible to be an auditor of the Company during his
continuance in office.
116. The remuneration of the auditors of the Company, in the case of auditors
appointed by the directors, may be fixed by resolution of directors but
subject thereto shall be fixed by resolution of members or in such manner
as the Company may by resolution of members determine.
117. The auditors shall examine each profit and loss account and balance sheet
required to be served on every member of the Company or laid before a
meeting of the members of the Company and shall state in a written report
whether or not
(a) In their opinion the profit and loss account and balance sheet give
a true and fair view respectively of the profit and loss for the
period covered by the accounts, and of the state of affairs of the
Company at the end of that period;
(b) all the information and explanations required by the auditors have
been obtained.
118. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
119. Every auditor of the Company shall have a right of access at all times to
the books of account and vouchers of the Company, and shall be entitled to
require from the directors and officers of the Company such information
and explanations as he thinks necessary for the performance of the duties
of the auditors.
120. The auditors of the Company shall be entitled to receive notice of, and to
attend any meetings of members of the Company at which the Company's
profit and loss account and balance sheet are to be presented.
NOTICES
121. Any notice, information or written statement to be given by the Company to
members shall be served by personal service or by mail addressed to each
member at the address shown in the Share Register or if the Share Register
does not contain an address for the member, then to the last known address
for such member.
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PENSION AND SUPERANNUATION FUNDS
122. The directors may establish and maintain or procure the establishment and
maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving of
donations, gratuities, pensions, allowances or emoluments to any persons
who are or were at any time in the employment or service of the Company or
any company which is a subsidiary of the Company or is allied to or
associated with the Company or with any such subsidiary, or who are or
were at any time directors or officers of the Company or of any such other
company as aforesaid or who hold or held any salaried employment or office
in the Company or such other company, or any persons in whose welfare the
Company or any such other company as aforesaid is or has been at any time
interested, and to the wives, widows, families and dependents of any such
person, and may make payments for or towards the insurance of any such
persons as aforesaid, and may do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid. Subject always
to the proposal being approved by resolution of members, a director
holding any such employment, or office shall be entitled to participate in
and retain for his own benefit any such donation, gratuity, pension
allowance or emolument.
ARBITRATION
123. Whenever any difference arises between the Company on the one hand and any
of the members or their executors, administrators or assigns on the other
hand, touching the true intent and construction or the incidence or
consequences of these Articles or of the Act, touching anything done or
executed, omitted or suffered in pursuance of the Act or touching any
breach or alleged breach or otherwise relating to the premises or to these
Articles, or to any Act affecting the Company or to any of the affairs of
the Company such difference shall, unless the parties agree to refer the
same to a single arbitrator, be referred to 2 arbitrators one to be chosen
by each of the parties to the difference and the arbitrators shall before
entering on the reference appoint an umpire.
124. If either party to the reference makes default in appointing an arbitrator
either originally or by way of substitution (in the event that an
appointed arbitrator shall die, be incapable of acting or refuse to act)
for 10 days after the other party has given him notice to appoint the
same, such other party may appoint an arbitrator to act in the place of
the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
125. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of directors.
CONTINUATION
126. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside The Bahamas in the
manner provided under those laws.
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SIGNATURE OF
THE 2 SUBSCRIBERS OF THE MEMORANDUM OF ASSOCIATION
Subscriber Subscriber
LEX LTD. LEGIS LTD.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------- ------------------------
Its Authorised Signatory Its Authorised Signatory
WITNESS to the above Signatures:
/s/ Gwyneth V. Saunders
-------------------------------------
Gwyneth V. Saunders
P.O. Box SS-19084
Nassau, Bahamas
COMMONWEALTH OF THE BAHAMAS
REGISTRAR GENERAL'S DEPARTMENT
I certify the foregoing to be a true copy of the
original document.
/s/ [ILLEGIBLE]
-----------------------------------------
Registrar General
AUG 12 2004