THE COMPANIES LAW
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COMPANY LIMITED BY SHARES
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AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
ACE LIMITED
(as amended by Special Resolution on 14th January, 1993)
(as amended by Special Resolution on 6th February, 1998
with effect from 2nd March, 1998)
1. In these Articles Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context inconsistent therewith,
"Articles" means these Articles as originally framed or as from time to
time altered by Special Resolution.
"The Auditors" means the persons for the time being performing the duties
of auditors of the Company.
"The Company" means the above named Company.
"Controlled Shares" in reference to any person means:
(a) all shares of the Company directly, indirectly or constructively
owned by such person within the meaning of Section 958 of the Internal
Revenue Code of 1986, as amended from time to time, of the United States of
America; or
(b) all shares of the Company directly, indirectly or beneficially
owned by such person within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended from time to time, of the United States of
America (including any shares beneficially owned by any group of persons as
so defined and including any shares that would otherwise be excluded by the
provisions of Section 13(d)(6)
thereof) and the rules and regulations thereunder, as amended from time to
time (including any shares that would otherwise be excluded by the
provisions of Rule 13d-4 thereof);
(c) notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares entitled to vote,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, the definition of Controlled Shares
contained in this Article 1.
"Debenture" means debenture stock, mortgages, bonds and any other such
securities of the Company whether constituting a charge on the assets of
the Company or not.
"The Directors" means the directors for the time being of the Company.
"Dividend" includes bonus.
"Member" shall bear the meaning ascribed to it in Section 37 of the
Statute.
"Month" means calendar month.
"Paid-up" means paid-up and/or credited as paid-up.
"The Registered Office" means the registered office for the time being of
the Company.
"Seal" means the common seal of the Company and includes every official
seal.
"Secretary" includes an Assistant Secretary and any person appointed to
perform the duties of Secretary of the Company.
"Special Resolution" has the same meaning as in the Statute.
"Statute" means The Companies Law (Revised) of the Cayman Islands as
amended and every statutory modification or re-enactment thereof for the
time being in force.
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"Written" and "In Writing" include all modes of representing or reproducing
words in visible form.
Words importing the singular number shall also include the plural number
and vice-versa.
Words importing the masculine gender shall also include the feminine
gender.
Words importing persons shall also include corporations.
CERTIFICATE FOR SHARES
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2. Certificates representing shares of the Company shall be in such form
and may bear such legends (reflecting the terms of issue of the shares thereby
represented, or any of these Articles or other relevant matters) as shall be
determined by the Directors. Such certificates shall be under seal signed by a
Director and countersigned by the Secretary or another Director or other
authorised person. All certificates for shares shall be consecutively numbered
or otherwise identified and shall specify the shares to which they relate. The
name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered in the
register of Members of the Company. All certificates surrendered to the Company
for transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares has been surrendered and
cancelled. The Directors may authorise certificates to be issued with the seal
and authorised signatures affixed by some method or system of mechanical
process.
3. Notwithstanding Article 2 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on such terms (if any) as to
evidence and indemnity and the payment of the expenses incurred by the Company
in investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
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4. (a) The authorised share capital shall be represented by Ordinary
Shares with respective rights as set forth in Part I below, and other classes or
series of Shares with respective rights
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to be determined upon the creation thereof by action of the Directors from time
to time as set forth in Part II below.
PART I
ORDINARY SHARES
(1) Dividends. The holders of Ordinary Shares shall be entitled to receive
dividends declared in accordance with the Articles set forth under the caption
"Dividends and Reserve."
(2) Liquidation. In the event of any dissolution, liquidation or winding
up of the Company, whether voluntary or involuntary, after there shall have been
paid or set aside for payment to the holders of any outstanding shares ranking
senior to the Ordinary Shares as to distribution on liquidation, distribution or
winding up, the full amounts to which they shall be entitled, the holders of the
then outstanding Ordinary Shares shall be entitled to receive, pro rata
according to the number of Ordinary Shares registered in the names of such
Members, any remaining assets of the Company available for distribution to its
Members; provided, if, at such time, the holder of Ordinary Shares has any
outstanding debts, liabilities or engagements to or with the Company (whether
presently payable or not), either alone or jointly with any other person,
whether a Member or not, (including, without limitation, any liability
associated with the unpaid purchase price of such Ordinary Shares), the
liquidator appointed to oversee the liquidation of the Company shall deduct from
the amount payable in respect of such Ordinary Shares the aggregate amount of
such debts, liabilities and engagements and apply such amount to any of such
holder's debts, liabilities or engagements to or with the Company (whether
presently payable or not). The liquidator may distribute, in kind, to the
holders of the Ordinary Shares remaining assets of the Company or may sell,
transfer or otherwise dispose of all or any part of such remaining assets to any
other corporation, trust or entity and receive payment therefor in cash, shares
or obligations of such other corporation, trust or entity or any combination
thereof, and may sell all or any part of the consideration so received, and may
distribute the consideration received or any balance or proceeds thereof to
holders of the Ordinary Shares.
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(3) Voting. Each outstanding Ordinary Share of the Company shall be
entitled to one vote per share (subject to Article 46) and the holder thereof
shall be entitled to notice of, to attend, and to vote at, General Meetings of
the Company in accordance with the Articles set forth under the captions
"Notices of General Meetings," "General Meetings," "Proceedings at General
Meetings," "Votes of Members" and "Proxies".
(4) Reservation of Ordinary Shares. Such numbers of Ordinary Shares as may
from time to time be required for such purpose shall be reserved for issuance
upon exercise of any options or warrants to purchase Ordinary Shares.
(5) Preemptive Rights. No holder of Ordinary Shares of the Company shall,
by reason of such holding, have any preemptive right to subscribe to any
additional issue of shares of any class or series nor to any security
convertible into such shares.
(6) Redemption. Any issued and outstanding Ordinary Shares shall be
redeemable in such circumstances and on such terms as shall be agreed by the
Directors and the holder thereof, subject always to the laws of the Cayman
Islands, and the Directors may deduct from the redemption price for such shares
the aggregate amount of any outstanding debts, liabilities and engagements to or
with the Company (whether presently payable or not) by the holder of such
shares, either alone or jointly with any other person, whether a Member or not.
Without limiting the foregoing, the Company may, from time to time, purchase or
redeem all or part of the Ordinary Shares of any Member, whether or not the
Company has made a similar offer to all or any of the other Members.
PART II
OTHER CLASSES OR SERIES OF SHARES
The Directors are authorized, without obtaining any vote or consent of the
holders of any class or series of shares of the Company unless expressly
provided by the terms of issue of such class or series, subject to any
limitations prescribed by law, to provide from time to time for the issuance of
other classes or series of Shares, and in accordance with applicable procedures
of the Statute, to establish the characteristics of each class or series
including, without limitation, the following:
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(1) the number of shares of that class or series, which may subsequently be
increased or decreased (but not below the number of shares of that class or
series then outstanding) by resolution of the Directors, and the distinctive
designation thereof;
(2) the voting powers, full or limited, if any, of the shares of that class
or series;
(3) the rights in respect of dividends on the shares of that class or
series, whether dividends shall be cumulative and, if so, from which date or
dates and the relative rights or priority, if any, of payment of dividends on
shares of that class or series and any limitations, restrictions or conditions
on the payment of dividends;
(4) the relative amounts, and the relative rights or priority, if any, of
payment in respect of shares of that class or series, which the holders of the
shares of that class or series shall be entitled to receive upon any
liquidation, dissolution or winding up of the Company;
(5) the terms and conditions (including the price or prices, which may vary
under different conditions and at different redemption dates), if any, upon
which all or any part of the shares of that class or series may be redeemed, and
any limitations, restrictions or conditions on such redemption;
(6) the terms, if any, of any purchase, retirement or sinking fund to be
provided for the shares of that class or series;
(7) the terms, if any, upon which the shares of that class or series shall
be convertible into or exchangeable for shares of any other class, classes or
series, or other securities, whether or not issued by the Company;
(8) the restrictions, limitations and conditions, if any, upon issuance of
indebtedness of the Company so long as any shares of that class or series are
outstanding; and
(9) any other preferences and relative, participating, optional or other
rights and limitations not inconsistent with applicable law or the provisions of
this Article 4.
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(b) In the event of any conflict, the provisions of this Article 4
shall override the provisions of any other Article of these presents.
(c) Subject as aforesaid, the Directors may allot, issue, grant
options over or otherwise dispose of any shares of the Company at such times and
on such terms as they think proper.
(d) Unless otherwise specified by the Board of Directors, any shares
which have been called, redeemed or otherwise repurchased by the Company shall,
unless otherwise specified by the Directors, have the status of authorised but
unissued shares and may be subsequently issued for valid consideration.
(e) The Directors shall have the fullest powers permitted by law to
pay all or any redemption monies in respect of any shares out of the Company's
share capital and share premium accounts.
5. The Company shall maintain a register of its Members and every person
whose name is entered as a Member in the register of Members shall be entitled
without payment to receive within two (2) months after allotment or lodgement of
transfer (or within such other period as the conditions of issue shall provide)
one certificate for all his shares or several certificates each for one or more
of his shares provided that in respect of a share or shares held jointly by
several persons the Company shall not be bound to issue more than one
certificate and delivery of a certificate for a share to one of the several
joint holders shall be sufficient delivery to all such holders.
TRANSFER OF SHARES
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6. The instrument of transfer of any share shall be in writing and shall
be executed by or on behalf of the transferor (and, in the case of a partly paid
share, by the transferee) and the transferor shall be deemed to remain the
holder of a share until the name of the transferee is entered in the register in
respect thereof.
7. (a) The Directors shall have absolute discretion to decline to
register a transfer of shares:
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(i) unless a registration statement under the Securities Act of 1933, as
amended, of the United States of America is in effect with respect to
such shares or a written opinion from counsel acceptable to the
Directors is obtained to the effect that no such registration is
required; or
(ii) if it appears to the Directors that the effect of such transfer would
be to increase the number of the Controlled Shares of any person to
ten percent (10%) or any higher percentage of any class or series of
the issued shares of the Company.
In any other case, the Directors shall also have absolute discretion to
decline to register any transfer of shares. If the Directors refuse to register
a transfer they shall notify the transferee within two (2) months of such
refusal.
(b) Notwithstanding anything contained in these Articles to the contrary,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares entitled to vote, voting together as a
single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article 7.
8. The holder of any redeemable shares for which the Company has issued a
notice of call in accordance with these Articles may not transfer such shares,
whether or not the Company has yet paid the call price to the Member.
9. The registration of transfers may be suspended at such time and for
such periods as the Directors may from time to time determine, provided always
that such registration shall not be suspended for more than forty-five (45) days
in any year.
VARIATION OF RIGHTS OF SHARES
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10. (a) If at any time the share capital of the Company 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) may, whether or not the Company is being wound-up, be varied with the
consent in writing of the holders of three-fourths of the issued shares of that
class or
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series, or with the sanction of a Special Resolution passed at a general meeting
of the holders of the shares of that class or series.
(b) The provisions of these Articles relating to general meetings shall
apply to every such general meeting of the holders of one class or series of
shares except that the necessary quorum shall be one person holding or
representing by proxy at least one-third of the issued shares of the class or
series and that any holder of shares of the class or series present in person or
by proxy may demand a poll.
(c) Class or series meetings and class or series votes may only be called
at the direction of the Directors. Nothing in this Article 10 gives any Member
or group of Members the right to call a class or series meeting or demand a
class or series vote.
11. The rights conferred upon the holders of the shares of any class or
series issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class or series,
be deemed to be varied by the creation or issue of further shares ranking in any
respect prior to or pari passu therewith. The rights of the holders of Ordinary
Shares shall not be deemed to be varied by the creation or issue of shares with
preferred or other rights, which may be effected by the Directors as provided in
these Articles without any vote or consent of the holders of Ordinary Shares.
NON-RECOGNITION OF TRUSTS
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12. No person shall be recognised by the Company as holding any share upon
any trust and the Company shall not be bound by or be compelled in any way to
recognise (even when having notice thereof) any equitable, contingent, future,
or partial interest in any share, or any interest in any fractional part of a
share, or (except only as is otherwise provided by these Articles or the
Statute) any other rights in respect of any share except an absolute right to
the entirety thereof in the registered holder.
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LIEN ON SHARES
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13. The Company shall have a first and paramount lien and charge on
all shares (whether fully paid-up or not) registered in the name of a Member
(whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by such
Member or his estate, either alone or jointly with any other person, whether a
Member or not, but the Directors may at any time declare any share to be wholly
or in part exempt from the provisions of this Article. The registration of a
transfer of any such share shall operate as a waiver of the Company's lien (if
any) thereon. The Company's lien (if any) on a share shall extend to all
dividends, redemptions or other monies payable in respect thereof.
14. The Company may sell, in such manner as the Directors deem fit,
any shares on which the Company has a lien, except as set forth in this Article
14. Unless otherwise permitted in the instrument creating such lien, no such
sale shall be made unless a sum in respect of which the lien exists is presently
payable. Unless otherwise permitted in the instrument creating such lien, no
such sale shall be made until the expiration of fourteen (14) days after a
notice in writing stating and demanding payment of such part of the amount in
respect of which the lien exists as is presently payable, has been given to the
registered holder or holders for the time being of the shares, or the person, of
which the Company has notice, entitled thereto by reason of his death or
bankruptcy.
15. To give effect to any such sale the Directors may authorise some
person to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares comprised in any such transfer,
and he shall not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or invalidity in
the proceedings in reference to the sale.
16. The proceeds of such sale shall be received by the Company and
applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject to a like
lien for sums not
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presently payable as existed upon the shares before the sale) be paid to the
person entitled to the shares at the date of the sale.
CALL ON SHARES
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17. (a) The Directors may from time to time make calls upon the
Members in respect of any monies unpaid on their shares (whether on account of
the nominal value of the shares or by way of premium or otherwise) and not by
the conditions of allotment thereof made payable at fixed terms; and each Member
shall, subject to receiving at least fourteen (14) days notice (or such shorter
period of notice as may have been authorised by the terms of issue of the
shares) specifying the time or times of payment, pay to the Company at the time
or times so specified the amount called on the shares. A call may be revoked or
postponed as the Directors may determine. A call may be made payable by
installments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
18. If a sum called in respect of a share is not paid before or on a
day appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the time
of actual payment at such rate not exceeding ten percent (10%) per annum as the
Directors may determine, but the Directors shall be at liberty to waive payment
of such interest either wholly or in part.
19. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of the
share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a call duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of non-
payment all the relevant provisions of these Articles as to payment of interest
forfeiture or otherwise shall apply as if such sum had become payable by virtue
of a call duly made and notified.
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20. The Directors may, on the issue of shares, differentiate between
the holders as to the amount of calls or interest to be paid and the times of
payment.
21. (a) The Directors may, if they think fit, receive from any
Member willing to advance the same, all or any part of the monies uncalled and
unpaid upon any shares held by him, and upon all or any of the monies so
advanced may (until the same would but for such advances, become payable) pay
interest at such rate not exceeding (unless the Company in general meeting shall
otherwise direct) seven percent (7%) per annum, as may be agreed upon between
the Directors and the Member paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member
paying such sum to any portion of a dividend declared in respect of any period
prior to the date upon which such sum would, but for such payment, become
presently payable.
FORFEITURE OF SHARES
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22. (a) If a Member fails to pay any call or instalment of a call or
to make any payment required by the terms of issue on the day appointed for
payment thereof, the Directors may, at any time thereafter during such time as
any part of the call, instalment or payment remains unpaid, give notice
requiring payment of so much of the call, instalment or payment as is unpaid,
together with any interest which may have accrued and all expenses that have
been incurred by the Company by reason of such non-payment. Such notice shall
name a day (not earlier than the expiration of fourteen (14) days from the date
of giving of the notice) on or before which the payment required by the notice
is to be made, and shall state that, in the event of non-payment at or before
the time appointed the shares in respect of which such notice was given will be
liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been given may at
any time thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the Directors to that effect. Such forfeiture
shall include all
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dividends declared in respect of the forfeited share and not actually paid
before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Directors deem fit and at any time before a sale
or disposition the forfeiture may be cancelled on such terms as the Directors
think fit.
23. A person whose shares have been forfeited shall cease to be a
Member in respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all monies which, at the date of forfeiture were
payable by him to the Company in respect of the shares together with interest
thereon, but his liability shall cease if and when the Company shall have
received payment in full of all monies whenever payable in respect of the
shares.
24. A certificate in writing under the hand of one Director and the
Secretary of the Company that a share in the Company has been duly forfeited on
a date stated in the declaration shall be conclusive evidence of the fact
therein stated as against all persons claiming to be entitled to the share. The
Company may receive the consideration given for the share on any sale or
disposition thereof and may execute a transfer of the share in favour of the
person to whom the share is sold or disposed of and he shall thereupon be
registered as the holder of the share and shall not be bound to see to the
application of the purchase money, if any, nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings in reference to
the forfeiture, sale or disposal of the share.
25. The provisions of these Articles as to forfeiture shall apply in
the case of non-payment of any sum which, by the terms of issue of a share,
becomes payable at a fixed time, whether on account of the nominal value of the
share or by way of premium as if the same had been payable by virtue of a call
duly made and notified.
TRANSMISSION OF SHARES
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26. In case of the death of a Member who is a natural person, the
survivor or survivors where the deceased was a joint holder, and the legal
personal representatives of the deceased where he was
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a sole holder, shall be the only persons recognised by the Company as having any
title to his interest in the shares, but nothing herein contained shall release
the estate of any such deceased holder from any liability in respect of any
shares which had been held by him solely or jointly with other persons.
27. (a) Any person becoming entitled to a share in consequence of
the death or bankruptcy of a Member (or in any other way than by transfer) may,
upon such evidence being produced as may from time to time be required by the
Directors and subject as hereinafter provided, elect either to be registered
himself as holder of the share or to make such transfer of the share to such
other person nominated by him as the deceased or bankrupt person could have made
and to have such person registered as the transferee thereof, but the Directors
shall, in either case, have the same right to decline or suspend registration as
they would have had in the case of a transfer of the share by that Member before
his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in writing
signed by him stating that he so elects.
28. A person becoming entitled to a share by reason of the death or
bankruptcy of the holder (or in any other case than by transfer) shall be
entitled to the same dividends and other advantages to which he would be
entitled if he were the registered holder of the share, except that he shall
not, before being registered as a Member in respect of the share, be entitled in
respect of it to exercise any right conferred by membership in relation to
meetings of the Company; provided, however, that the Directors may at any time
give notice requiring any such person to elect either to be registered himself
or to transfer the share and if the notice is not complied with within ninety
(90) days the Directors may thereafter withhold payment of all dividends,
bonuses or other monies payable in respect of the share until the requirements
of the notice have been complied with.
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AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE & ALTERATION OF CAPITAL
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29. (a) Subject to and insofar as permitted by the provisions of the
Statute, the Company may from time to time by Special Resolution alter or amend
its Memorandum of Association and may, without restricting the generality of the
foregoing:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution shall
prescribe and with such rights, priorities and privileges annexed thereto,
as the Company in general meeting may determine;
(ii) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the
whole or any part of its share capital into shares of smaller amount than
is fixed by the Memorandum of Association;
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute the Company may by Special
Resolution reduce its share capital, any capital redemption reserve fund, or any
share premium account.
30. Subject to the provisions of the Statute the Company may by Special
Resolution change its name or alter its objects.
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31. Subject to the provisions of the Statute the Company may by resolution
of the Directors change the location of its registered office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
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32. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any adjournment thereof, or Members entitled
to receive payment of any dividend, or in order to make the determination of
Members for any other proper purpose, the Directors of the Company may provide
that the register of Members shall be closed for transfers for a stated period
but not to exceed in any case forty (40) days. If the register of Members shall
be so closed for the purpose of determining Members entitled to notice of or to
vote at a meeting of Members such register shall be so closed for at least ten
(10) days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the register of Members.
33. In lieu of or apart from closing the register of Members, the
Directors may fix in advance a date as the record date for any such
determination of Members entitled to notice of or to vote at a meeting of the
Members and for the purpose of determining the Members entitled to receive
payment of any dividend.
34. If the register of Members is not so closed and no record date is
fixed for the determination of Members entitled to notice of or to vote at a
meeting of Members or Members entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case may
be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has been
made as provided in this section, such determination shall apply to any
adjournment thereof.
GENERAL MEETING
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35. (a) The Company shall in each year of its existence hold a general
meeting as its Annual General Meeting and shall specify
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the meeting as such in the notices calling it. The Annual General Meeting shall
be held at such time and place as the Directors shall appoint.
(b) At these meetings the financial statements of the Company and the
reports of the Directors and Auditors shall be presented and the Directors to be
elected at that meeting and Auditors shall be elected for the ensuing year or
until their respective successors have been elected and have qualified.
36. (a) Except as otherwise required by law, and subject to the terms of
any class or series of shares issued by the Company having a preference over the
Ordinary Shares as to dividends or upon liquidation to elect directors in
specified circumstances, extraordinary general meetings of the Members of the
Company may be called only by (i) the Directors or (ii) at the request in
writing of Members owning at least twenty-five percent (25%) of the outstanding
shares generally entitled to vote.
(b) Any action required or permitted to be taken by the Members of the
Company must be taken at a duly called annual or extraordinary general meeting
of the Members of the Company and may not be taken by consent in writing or
otherwise.
(c) Notwithstanding anything contained in these Articles to the contrary,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares generally entitled to vote, voting together
as a single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article 36.
NOTICE OF GENERAL MEETINGS
--------------------------
37. Written notice of each meeting of the Members stating the place, date
and time of the meeting shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting, to each Member entitled to vote
at such meeting. The notice of any extraordinary meeting of Members shall state
the purpose or purposes for which the meeting is called.
38. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person
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entitled to receive notice shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
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39. (a) No business shall be transacted at any general meeting unless a
quorum of Members is present at the time when the meeting proceeds to business.
Not less than six (6) Members present in person or by proxy holding at least
fifty percent (50%) of the issued and outstanding shares of the Company entitled
to vote at such meeting shall be a quorum; provided, however, that no quorum
shall exist for the purpose of considering or passing any Special Resolution
unless the Members present in person or by proxy shall hold at least sixty-six
and two-thirds percent (66-2/3%) of the issued and outstanding shares of the
Company entitled to vote at such meeting.
(b) An Ordinary Resolution shall require the vote of a majority of such
shares as, being entitled to do so, vote in person or by proxy at any general
meeting at which the required quorum is present in person or by proxy, voting
together as a single class.
40. (a) If a Member desires to submit a proposal for consideration at an
annual general meeting or extraordinary general meeting, or to nominate persons
for election as Directors at any general meeting duly called for the election of
Directors, written notice of such Member's intent to make such a proposal or
nomination must be given and received by the Secretary of the Company at the
principal executive offices of the Company not later than (i) with respect to an
annual general meeting of Members, sixty (60) days prior to the anniversary date
of the immediately preceding annual general meeting, and (ii) with respect to a
extraordinary general meeting, the close of business on the tenth (10th) day
following the date on which notice of such meeting is first sent or given to
Members. Each notice shall describe the proposal or nomination in sufficient
detail for a proposal or nomination to be summarized on the agenda for the
meeting and shall set forth (i) the name and address, as it appears on the books
of the Company, of the Member who intends to make the proposal or nomination;
(ii) a representation that the Member is a holder of record of shares of the
Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to present such proposal or nomination; and (iii) the class
and number
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of shares of the Company which are beneficially owned by the Member. In
addition, in the case of a Member's proposal, the notice shall set forth the
reasons for conducting such proposed business at the meeting and any material
interest of the Member in such business.
(b) In the case of a nomination of any person for election as a Director,
the notice shall set forth: (i) the name and address of any person to be
nominated; (ii) a description of all arrangements or understandings between the
Member and each nominee and any other person or persons (naming such person or
persons pursuant to which the nomination or nominations are to be made by the
Member; (iii) such other information regarding such nominee proposed by such
Member as would be required to be included in a proxy statement filed pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended from
time to time, of the United States of America, whether or not the Company is
then subject to such Regulation; and (iv) the consent of each nominee to serve
as a Director of the Company, if so elected. The Chairman of the annual general
meeting or extraordinary general meeting shall, if the facts warrant, refuse to
acknowledge a proposal or nomination not made in compliance with the foregoing
procedure, and any such proposal or nomination not properly brought before the
meeting shall not be considered.
(c) Notwithstanding anything contained in these Articles to the contrary,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares entitled to vote, voting together as a
single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article 40.
41. If within one hour after the time appointed for the meeting a quorum
is not present, the meeting shall be dissolved.
42. The Chairman, if any, of the Board of Directors shall preside as
Chairman at every general meeting of the Company, or if there is no such
Chairman, or if he shall not be present within thirty (30) minutes after the
time appointed for the holding of the meeting, or is unwilling to act, the
Directors present shall elect one of their number to be Chairman of the meeting.
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43. If at any general meeting no Director is willing to act as Chairman or
if no Director is present within thirty (30) minutes after the time appointed
for holding the meeting, the Members present shall choose one of their number to
be Chairman of the meeting.
44. The Chairman may, with the consent of any general meeting duly
constituted hereunder, and shall if so directed by the meeting, adjourn the
meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place. When a general meeting is
adjourned for thirty (30) days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting; save as aforesaid it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned general meeting.
45. At any general meeting a resolution put to the vote at the meeting
shall be decided on a poll taken in such manner as the Chairman directs.
VOTES OF MEMBERS
----------------
46. (a) Subject to Article 4, every Member of record present in person or
by proxy shall have one vote for each issued and outstanding Ordinary Share
registered in his name in the register; provided that if and so long as the
Controlled Shares of any person constitute ten percent (10%) or more of the
issued and outstanding Ordinary Shares of the Company, each issued and
outstanding Ordinary Share comprised in such Controlled Shares shall confer only
a fraction of a vote according to the following formula:
[(T divided by 10) - 1] divided by C.
Where: "T" is the aggregate number of votes conferred by all the issued
and outstanding Ordinary Shares of the Company;
"C" is the number of the Controlled Shares of such person.
(b) Except as may be otherwise provided by the Directors in connection
with the authorization of any class or series of shares,
-20-
the limitation of the foregoing Section (a) shall apply on an aggregate basis to
all classes or series of shares entitled to vote that the Company may issue from
time to time.
(c) Notwithstanding anything contained in these Articles to the contrary,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares entitled to vote, voting together as a
single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article 46.
47. In the case of joint holders of record the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of Members.
48. A Member of unsound mind, or in respect of whom an order has been made
by any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other person
in the nature of a committee, receiver or curator bonis appointed by that court,
and any such committee, receiver, curator bonis or other persons may vote by
proxy.
49. No Member shall be entitled to vote at any general meeting unless he
is registered as a Member of the Company on the record date for such meeting nor
unless all calls or other sums presently payable in respect of the shares to be
voted have been paid.
50. No objection shall be raised to the qualification of any voter except
at the general meeting or adjourned general meeting at which the vote objected
to is given or tendered and every vote not disallowed at such general meeting
shall be valid for all purposes. Any such objection made in due time shall be
referred to the Chairman of the general meeting whose decision shall be final
and conclusive.
51. Votes may be given either personally or by proxy.
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PROXIES
-------
52. The instrument appointing a proxy shall be in writing and shall
be executed under the hand of the appointor or of his attorney duly authorised
in writing, or, if the appointor is a corporation under the hand of an officer
or attorney duly authorised in that behalf. A proxy need not be a Member of the
Company.
53. The instrument appointing a proxy shall be deposited at the
Registered Office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting provided that the Chairman of the Meeting may
at his discretion direct that an instrument of proxy shall be deemed to have
been duly deposited upon receipt of facsimile transmission of the signed proxy
or upon receipt of telex or cable confirmation from the appointor that the
instrument of proxy duly signed is in the course of transmission to the Company.
54. The instrument appointing a proxy may be in any usual or common
form and may be expressed to be for a particular meeting or any adjournment
thereof or generally until revoked.
55. A vote given in accordance with the terms of an instrument of
proxy shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the proxy
was executed, or the transfer of the share in respect of which the proxy is
given provided that no intimation in writing of such death, insanity, revocation
or transfer as aforesaid shall have been received by the Company at the office
before the commencement of the general meeting, or adjourned meeting at which it
is sought to use the proxy.
56. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision by resolution
of its Directors or other governing body authorise such person as it thinks fit
to act as its representative at any meeting of the Company or of any class of
Members of the Company, and the person so authorised shall be entitled to
exercise the same powers on behalf of the corporation which he represents as the
corporation could exercise if it were an individual Member of record of the
Company.
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DIRECTORS
---------
57. (a) There shall be a Board of Directors consisting of not less
than three (3) or more than twenty (20) persons, provided, however, that the
Company may from time to time by ordinary resolution increase or decrease the
limits in the number of Directors. The Directors shall have the exclusive power
and right to set the exact number of Directors within that range from time to
time by resolution adopted by the vote of a majority of the Directors present at
a meeting at which a quorum is present, or by unanimous written consent. The
Directors shall be divided into three classes, designated by Class I, Class II
and Class III. At the 1993 annual general meeting of Members, Class I Directors
shall be elected for a term expiring at the 1994 annual general meeting of
Members, Class II Directors for a term expiring at the 1995 annual general
meeting of Members and Class III Directors for a term expiring at the 1996
annual general meeting of Members. At each succeeding annual general meeting of
Members, successors to Directors whose terms expire at that annual general
meeting shall be of the same class as the Directors they succeed and shall be
elected for three-year terms. If the number of Directors is decreased by
resolution of the Board of Directors pursuant to this Article 57, in no case
shall that decrease shorten the term of any incumbent Director.
(b) A Director shall hold office until the annual general meeting for
the year in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to prior death, resignation,
retirement or removal from office. Any newly created directorship resulting
from an increase in the number of Directors and any other vacancy on the Board
of Directors, however caused, may be filled by a majority of the Directors then
in office, although less than a quorum, or by a sole remaining Director. Any
Director elected by one or more Directors to fill a newly created directorship
or other vacancy shall, without regard to the class in which the vacancy
occurred, hold office until the next succeeding annual general meeting of
Members and until his or her successor shall have been elected and qualified.
The term of a Director elected by Members to fill a newly created directorship
or other vacancy shall expire at the same time as the terms of the other
Directors of the same class.
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(c) One or more or all of the Directors of the Company may be removed
(i) with cause, by Ordinary Resolution, and (ii) without cause, by the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the outstanding shares generally entitled to vote, voting together as a
single class, at a meeting of Members for which proper notice of the proposed
removal has been given.
(d) Advance notice of nominations for the election of Directors,
other than nominations by the Board of Directors or a committee thereof, shall
be given to the Company in the manner provided in Article 40 of these Articles.
(e) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of shares issued by the Company shall have the right,
voting separately by class or series, to elect Directors at an annual general
meeting or extraordinary general meeting of Members, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the provisions of these Articles, including any applicable
resolutions of the Directors adopted pursuant to Article 4 hereof. Directors so
elected shall not be divided into classes and shall be elected by such holders
annually unless expressly provided otherwise by those provisions or resolutions,
and, during the prescribed terms of office of those Directors, the Board of
Directors shall consist of a number of Directors equal to the number of those
Directors plus the number of Directors determined as provided in the first
paragraph of this Article 57.
(f) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and two-
thirds percent (66 2/3%) of the outstanding shares generally entitled to vote,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, this Article 57.
58. The Directors shall have the authority to fix the compensation of
Directors, which may include their expenses, if any, of attendance at each
meeting of the Directors or of a committee.
59. A Director may hold any other office or place of profit under the
Company (other than the office of Auditor) in conjunction
-24-
with his office of Director for such period and on such terms as to remuneration
and otherwise as the Directors may determine.
60. A Director may act by himself or his firm in a professional
capacity for the Company and he or his firm shall be entitled to remuneration
for professional services as if he were not a Director.
61. A membership qualification for Directors may be fixed by the
Company in general meeting, but unless and until so fixed no qualification shall
be required.
62. A Director of the Company may be or become a Director or other
Officer of or otherwise interested in any company promoted by the Company or in
which the Company may be interested as shareholder, member or otherwise and no
such Director shall be accountable to the Company for any remuneration or other
benefits received by him as a Director or Officer of, or from his interest in,
such other company.
63. No person shall be disqualified from the office of Director or
prevented by such office from contracting with the Company, either as vendor,
purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the
Company for any profit realised by any such contract or transaction by reason of
such Director holding office or of the fiduciary relation thereby established.
A Director shall be at liberty to vote in respect of any contract or transaction
in which he is so interested as aforesaid; provided, however, that the nature of
the interest of any Director in any such contract or transaction shall be
disclosed by him at or prior to its consideration and any vote thereon.
64. A general notice that a Director is a shareholder or member of
any specified firm or company and is to be regarded as interested in any
transaction with such firm or company shall be sufficient disclosure under
Article 63 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
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POWERS AND DUTIES OF DIRECTORS
------------------------------
65. The business of the Company shall be managed by the Directors who
may exercise all such powers of the Company as are not, from time to time by the
Statute, or by these Articles, or such regulations, being not inconsistent with
the aforesaid, as may be prescribed by the Company in general meeting required
to be exercised by the Company in general meeting; provided, however, that no
regulations made by the Company in general meeting shall invalidate any prior
act of the Directors which would have been valid if that regulation had not been
made.
66. The Directors may from time to time and at any time by powers of
attorney appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys of the
Company for such purpose and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Directors under these Articles)
and for such period and subject to such conditions as they may think fit, and
any such powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorneys as the Directors may deem
fit and may also authorise any such attorney to delegate all or any of the
powers, authorities and discretions vested in him.
67. All cheques, promissory notes, drafts, bills of exchange and
other negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the case may
be in such manner as the Directors shall from time to time by resolution
determine.
68. The Directors shall cause Minutes to be made in books provided for the
purpose:
(a) of all appointments of Officers made by the Directors;
(b) of the names of the Directors present at each meeting of the
Directors and of any committee of the Directors;
-26-
(c) of all resolutions and proceedings at all meetings of the Company
and of the Directors and of Committees of Directors.
69. The Directors on behalf of the Company may pay a gratuity or pension
or allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or dependents and may
make contributions to any fund and pay premiums for the purchase or provision of
any such gratuity, pension or allowance.
70. The Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property and uncalled capital
or any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party.
COMMITTEES
----------
71. (a) The Board of Directors, by resolution adopted by a majority of
the whole Board, may designate one or more Directors to constitute an Executive
Committee.
(b) Except as expressly limited by the Statute, the Memorandum of
Association, these Articles of Association or as determined from time to time by
the Directors, the Executive Committee shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Company. The Executive Committee shall keep a record of its
acts and proceedings, which shall form a part of the records of the Company in
the custody of the Secretary and all actions of the Executive Committee shall be
reported to the Board of Directors at the next meeting of the Board.
72. The Board of Directors, or any committee thereunto expressly
authorized by the Board of Directors, by resolution adopted by a majority of the
whole Board or committee, as the case may be, may designate one or more other
committees, each such committee to consist of such person or persons as may be
designated by the Directors or appointing committee. Except as expressly
limited by law or by these Articles or by resolution of the Directors or
appointing committee, any such committee shall have
-27-
and may exercise such powers and adopt such procedures as the Directors or
appointing committee, as the case may be, may determine and specify in the
resolution designating such committee.
PROCEEDINGS OF DIRECTORS
------------------------
73. Except as otherwise provided by these Articles, the Directors shall
meet together for the dispatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising at any meeting
shall be decided by a majority of votes of the Directors present at a meeting at
which there is a quorum.
74. A Director may, and the Secretary on the requisition of a Director
shall, at any time summon a meeting of the Directors by at least seven (7) days'
notice in writing to every Director which notice shall set forth the general
nature of the business to be considered unless notice is waived by all the
Directors either at, before or after the meeting is held; provided further if
notice is given in person, by air courier, telegram, facsimile transmission,
telex, cablegram or wireless the same shall be deemed to have been given on the
day it is delivered to the Directors or transmitting organisation as the case
may be. The provisions of Article 37 shall apply mutatis mutandis with respect
to notices of meetings of Directors.
75. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors and unless so fixed shall a majority of
the Board; provided, however, that if there shall be at any time only a sole
Director the quorum shall be one.
76. The continuing Directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors the continuing
Directors or Director may act for the purpose of increasing the number of
Directors to that number, or of summoning a general meeting of the Company, but
for no other purpose.
77. The Directors may elect a Chairman of their Board and determine the
period for which he is to hold office; but if no such Chairman is elected, or if
at any meeting the Chairman is not present within thirty (30) minutes after the
time appointed for
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holding the same, the Directors present may choose one of their number to be
Chairman of the meeting.
78. All acts done by any meeting of the Directors or of a committee of
Directors shall, notwithstanding that it be afterwards discovered that there was
some defect in the appointment of any Director, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed and
qualified to be a Director.
79. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting. A resolution in writing (in one or more counterparts), signed by all
the Directors for the time being or all the members of a committee of Directors
shall be as valid and effectual as if it had been passed at a meeting of the
Directors or committee as the case may be duly convened and held.
VACATION OF OFFICE OF DIRECTOR
------------------------------
80. The office of a Director shall be vacated:
(a) If he gives notice in writing to the Company that he resigns the
office of Director;
(b) If he dies, becomes bankrupt or makes any arrangement or
composition with his creditors generally;
(c) If he is found a lunatic or becomes of unsound mind; or
(d) In the circumstances described in Article 57.
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PRESUMPTION OF ASSENT
---------------------
81. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
Minutes of the meeting or unless he shall file his written dissent from such
action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Company immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a Director who voted in favour of such
action.
CERTAIN BUSINESS COMBINATIONS
-----------------------------
82. (a) In addition to any approval by Members required by the
Statute or any other law of the Cayman Islands, the approval of the holders of
at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares
entitled to vote, voting together as a single class, at a meeting called for
such purpose, shall be required in order for the Company:
(i) to merge, consolidate or amalgamate with another company;
(ii) to reorganize or reconstruct itself pursuant to a plan sanctioned
by the Cayman Islands courts; or
(iii) to sell, lease or exchange all or substantially all of the assets
of the Company;
provided that the foregoing approval by Members shall not apply to any such
transaction of the Company with any entity which the Company, directly or
indirectly, controls, as defined in Rule 405 under the Securities Act of 1933,
as amended from time to time, of the United States of America.
(b) Notwithstanding anything contained in these Articles to the contrary,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding
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shares entitled to vote, voting together as a single class, shall be required to
amend or repeal, or adopt any provision inconsistent with, this Article 82.
SEAL
----
83. Subject to the provisions of Article 2 hereof, the Seal shall only be
used by the authority of the Directors or of a committee of the Directors
authorised by the Directors in that behalf and every instrument to which the
Seal has been affixed shall be signed by one person who shall be either a
Director or the Secretary or Secretary-Treasurer or some person appointed by the
Directors for the purpose; provided that the Company may have for use in any
territory, district or place not situated in the Cayman Islands, an official
seal which shall be a facsimile of the Common Seal of the Company with the
addition on its face of the name of every territory, district or place where it
is to be used; provided further that a Director, Secretary or other officer or
representative or attorney may without further authority of the Directors affix
the Seal of the Company over his signature alone to any document of the Company
required to be authenticated by him under Seal or to be filed with the Registrar
of Companies in the Cayman Islands or elsewhere wheresoever.
OFFICERS
--------
84. The Company may have a Chairman of the Board, Chairman of the
Executive Committee and/or President and shall have a Secretary or Secretary-
Treasurer appointed by the Directors who may also from time to time appoint such
other Officers as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions as to
disqualification and removal as the Directors from time to time prescribe.
85. A provision of the Statute or these Articles requiring or authorising
a thing to be done by a Director and an Officer shall not be satisfied by its
being done by the one person acting in the dual capacity of Director and
Officer.
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DIVIDENDS AND RESERVE
---------------------
86. Subject to the Statute, the Directors may from time to time
declare dividends on shares of the Company outstanding and authorise payment of
the same out of the profits of the Company, share premium account, or any other
account permitted by the Statute, and may from time to time pay to the Members
such interim dividends, as appears to the Directors to be justified by the
financial condition of the Company.
87. The Directors may deduct from any dividend payable to any Member
all sums of money (if any) presently payable by him to the Company on account of
calls or otherwise.
88. The Directors may declare that any dividend be paid wholly or
partly by the distribution of specific assets and in particular of paid up
shares, debentures, or debenture stock of any other company or in any one or
more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and in
particular may issue fractional certificates and fix the value for distribution
of such specific assets or any part thereof and may determine that cash payments
shall be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all Members and may vest any such specific assets in
trustees as may seem expedient to the Directors.
89. No dividend shall bear interest against the Company.
CAPITALISATION
--------------
90. The Company may upon the recommendation of the Directors by
ordinary resolution authorise the Directors to capitalise any sum standing to
the credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the credit
of profit and loss account or otherwise available for distribution and to
appropriate such sum to Members in the proportions in which such sum would have
been divisible amongst them had the same been a distribution of profits by way
of dividend and to apply such sum on their behalf in paying up in full unissued
shares (not being redeemable shares) for allotment and distribution credited as
fully paid up to and amongst them in the proportion aforesaid. In such
-32-
event the Directors shall do all acts and things required to give effect to such
capitalisation, with full power to the Directors to make such provisions as they
think fit for the case of shares becoming distributable in fractions (including
provisions whereby the benefit of fractional entitlements accrue to the Company
rather than to the Members concerned). The Directors may authorise any person
to enter on behalf of all of the Members interested into an agreement with the
Company providing for such capitalisation and matters incidental thereto and any
agreement made under such authority shall be effective and binding on all
concerned.
AUDIT
-----
91. The Company shall at each Annual General Meeting appoint an
Auditor or Auditors of the Company who shall hold office until the next Annual
General Meeting and may fix his or their remuneration.
92. The Directors shall fill any casual vacancy in the office of
Auditor but while any such vacancy continues the surviving or continuing Auditor
or Auditors, if any, may act. The remuneration of any Auditor, unless fixed by
the Company in General Meeting, shall be fixed by the Directors.
93. Every Auditor of the Company shall have a right of access at all
times to the books and accounts and vouchers of the Company and shall be
entitled to require from the Directors and Officers of the Company such
information and explanation as may be necessary for the performance of the
duties of the auditors.
94. Auditors shall at the next Annual General Meeting following their
appointment and at any other time during their term of office, upon request of
the Directors or any general meeting of the Members make a report on the
accounts of the Company in general meeting during their tenure of office.
NOTICES
-------
95. Notices shall be in writing and may be given by the Company to
any Member either personally or by sending it by post, air courier, cable,
facsimile transmission or telex to him or to his address as shown in the
register of Members, such notice, if mailed, to be forwarded airmail where
practicable.
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96. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying and posting a letter
containing the notice, and to have been effected at the expiration of five (5)
days after the letter containing the same is posted as aforesaid.
(b) Where a notice is sent by air courier, cable, facsimile transmission
or telex, service of the notice shall be deemed to be effected by properly
addressing pre-paying and sending through a transmitting organisation the
notice, and to have been effected at the expiration of forty-eight (48) hours
after the same is sent as aforesaid.
97. A notice may be given by the Company to the joint holders of record of
a share by giving the notice to the joint holder first named on the register of
Members in respect of the share.
98. A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in consequence of
the death or bankruptcy of a Member by sending it through the post as aforesaid
in a pre-paid letter addressed to them by name, or by the title of
representatives of the deceased, or trustee of the bankruptcy, or by any like
description at the address supplied for that purpose by the persons claiming to
be so entitled, or at the option of the Company by giving the notice in any
manner in which the same might have been given if the death or bankruptcy had
not occurred.
99. Notice of every general meeting shall be given in any manner
hereinbefore authorised to:
(a) every holder of voting shares as shown in the register of Members
as of the record date for such meeting except that in the case of joint holders
the notice shall be sufficient if given to the joint holder first named in the
register of Members.
(b) every person upon whom the ownership of a voting share devolves by
reason of his being a legal personal representative or a trustee in bankruptcy
of a holder of voting shares of record where such holder but for his death or
bankruptcy would be entitled to receive notice of the meeting; and
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Except as otherwise required by law or these Articles, no other person shall be
entitled to receive notices of general meetings.
INDEMNITY AND LIMITATION OF LIABILITY
-------------------------------------
100. (a) The Company shall indemnify, in accordance with and to the
full extent now or hereafter permitted by law, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, an action by or in the right of
the Company), by reason of his acting as a director, officer, employee or agent
of, or his acting in any other capacity for or on behalf of, the Company,
against any liability or expense actually and reasonably incurred by such person
in respect thereof. The Company may advance the expenses of defending any such
act, suit or proceeding in accordance with and to the full extent now or
hereafter permitted by law. Such indemnification and advancement of expenses
are not exclusive of any other right to indemnification or advancement of
expenses provided by law or otherwise.
(b) The Board of Directors may authorise the Company to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, or in a fiduciary or
other capacity with respect to any employee benefit plan maintained by the
Company, against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the Company
would have the power to indemnify him against such liability under the
provisions of this Article 101.
(c) Directors of the Company shall have no personal liability to the
Company or its Members for monetary damages for breach of fiduciary or other
duties as a director, except (i) for any breach of a director's duty of loyalty
to the Company or its Members, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) a
payment of a dividend on stock of the Company or a purchase or redemption of
stock of the Company in violation of law, or (iv) for any transaction from which
a director derived an improper personal benefit.
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BOOKS AND RECORDS
-----------------
101. Without prejudice to Article 35(b), no Member shall be entitled to
review the books and records of the Company, including without limitation, the
Company's register of Members, without the approval of the Directors.
FISCAL YEAR
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102. Each Fiscal Year shall commence on 1st of October and end on the 30th
September next following. At any time or times the Directors may prescribe some
other period for any Fiscal Year.
AMENDMENTS OF ARTICLES
----------------------
103. Subject to the Statute, except as otherwise provided in these
Articles, the Company may at any time and from time to time by Special
Resolution alter or amend these Articles in whole or in part.
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