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EXHIBIT 3.2(l)
INDEX
TO
ARTICLES OF ASSOCIATION
OF
XERXES LIMITED
ARTICLE PAGE
NUMBER NUMBER
PRELIMINARY . . . . . . . . . . . . . . . . . . . . 1 1
EXCLUSION OF TABLE A . . . . . . . . . . . . . . . 2 2
PRIVATE COMPANY . . . . . . . . . . . . . . . . . . 3 - 4 2
SHARE CAPITAL, CERTIFICATE AND
VARIATION OF RIGHTS . . . . . . . . . . . . . . . . 5 - 15 2 - 4
JOINT HOLDERS OF SHARES . . . . . . . . . . . . . . 16 4 - 5
LIEN . . . . . . . . . . . . . . . . . . . . . . . 17 - 20 5 - 6
CALLS ON SHARES . . . . . . . . . . . . . . . . . . 21 - 26 6
TRANSFER OF SHARES . . . . . . . . . . . . . . . . 27 - 31 6 - 9
TRANSMISSION OF SHARES . . . . . . . . . . . . . . 32 - 34 9 - 10
FORFEITURE OF SHARES . . . . . . . . . . . . . . . 35 - 41 10 - 11
ALTERATION OF CAPITAL . . . . . . . . . . . . . . . 42 - 46 11
GENERAL MEETINGS . . . . . . . . . . . . . . . . . 47 - 50 11 - 12
NOTICE OF GENERAL MEETINGS . . . . . . . . . . . . 51 - 53 12 - 13
PROCEEDINGS AT GENERAL MEETINGS . . . . . . . . . . 54 - 63 13 - 14
VOTES OF MEMBERS . . . . . . . . . . . . . . . . . 64 - 74 14 - 15
CORPORATIONS ACTING BY
REPRESENTATIVES AT MEETINGS . . . . . . . . . . . . 75 15
ROUND ROBIN . . . . . . . . . . . . . . . . . . . . 76 15
DIRECTORS . . . . . . . . . . . . . . . . . . . . . 77 - 82 15 - 16
BORROWING POWERS . . . . . . . . . . . . . . . . . 83 - 84 16
POWERS & DUTIES OF DIRECTORS . . . . . . . . . . . 85 - 98 16 - 19
DISQUALIFICATION OF DIRECTORS . . . . . . . . . . . 99 19
ROTATION OF DIRECTORS . . . . . . . . . . . . . . . 100 - 104 19 - 20
PROCEEDINGS OF DIRECTORS . . . . . . . . . . . . . 105 - 110 20 - 21
ALTERNATE DIRECTORS . . . . . . . . . . . . . . . . 111 - 112 21
MANAGING DIRECTOR . . . . . . . . . . . . . . . . . 113 - 116 21 - 22
SECRETARY . . . . . . . . . . . . . . . . . . . . . 117 - 119 22
MINUTES . . . . . . . . . . . . . . . . . . . . . . 120 22
THE SEAL . . . . . . . . . . . . . . . . . . . . . 121 22 - 23
DIVIDENDS . . . . . . . . . . . . . . . . . . . . . 122 - 130 23
RESERVE FUNDS . . . . . . . . . . . . . . . . . . . 131 23 - 24
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . 132 - 135 24
CAPITALISATION OF PROFITS . . . . . . . . . . . . . 136 - 137 24 - 25
AUDITORS . . . . . . . . . . . . . . . . . . . . . 138 25
NOTICES . . . . . . . . . . . . . . . . . . . . . . 139 - 143 25 - 26
DISCOVERY OF SECRETS . . . . . . . . . . . . . . . 144 26
INDEMNITY . . . . . . . . . . . . . . . . . . . . . 145 26
WINDING UP . . . . . . . . . . . . . . . . . . . . 146 - 147 27
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JAMAICA
THE COMPANIES ACT
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
XERXES LIMITED
PRELIMINARY
In these articles, unless the context otherwise requires:-
"The Act" shall mean the Companies Act and every other Act
incorporated therewith, or any Act or Acts
substituted therefor; and in case of any such
substitution the references in these articles to the
provisions of the Act shall be read as references to
the provisions substituted therefor in the new Act or
Acts.
"The Company" shall mean XERXES LIMITED
"The Register" shall mean the Register of Members to be kept as
required by the Act.
"Month" shall mean calendar month.
"Paid Up" shall include "credited as paid up".
"Jamaica" shall mean the Island of Jamaica.
"Seal" shall mean the Common Seal of the Company.
"Office" shall mean the registered office for the time being
of the Company.
"Secretary" shall include any assistant or deputy Secretary and
any person appointed to perform the duties or any
particular duty of the Secretary temporarily.
"In Writing" shall include printed, lithographed, typewritten and
visibly represented or reproduced by any other mode.
"Bankrupt" shall include a person becoming bankrupt or entering
into or making any composition or arrangement
statutory or otherwise with or without assignment of
all his property for the benefit of his creditors
generally, and
"Bankruptcy" shall have a corresponding meaning.
"the presents" shall mean the Memorandum of Association and these
articles and all the regulations of the Company for
the time being in force.
Words and expression which have a special meaning assigned to them in
the Act shall have the same meaning in these presents.
Words importing the singular number only shall include the plural,
and the converse shall also apply. Words importing individual shall
include corporations.
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EXCLUSION OF TABLE A
2. The Regulations in Table A in the First Schedule to the Act
shall not apply to the Company except in so far as they are repeated or.
contained in these articles.
PRIVATE COMPANY
3. The Company is a private company and accordingly:-
(a) the right to transfer shares is restricted in manner
hereinafter prescribed;
(b) the number of members of the Company (exclusive of persons who
are in the employment of the Company and of persons who having
been formerly in the employment of the Company were while in
such employment and have continued after the determination of
such employment to be members of the Company) is limited to
twenty; provided that where two or more persons hold one or
more shares in the Company jointly they shall for the purpose
of this article be treated as a single member;
(c) any invitation to the public to subscribe for any shares or
debentures of the Company is prohibited;
(d) the Company shall not make any invitation to the public to
deposit money for fixed periods or payable on call whether
bearing or not bearing interest;
(e) subject to any exceptions in this behalf which may be provided
for by the Fourteenth Schedule to the Act no person other than
the holder shall have any interest in any of the Company's
shares;
(f) the Company shall not have power to issue share warrants to
bearer.
4. The Directors may at any time require any person whose name is
entered in the Register to furnish any information, supported (if the Directors
so require) by a statutory declaration, which they may consider necessary for
the purpose of determining whether or not the Company is a private company
within the meaning of the Act.
SHARE CAPITAL, CERTIFICATES
AND VARIATION OF RIGHTS
5. Without prejudice to any special rights previously conferred
on the holders of existing shares in the Company, any share in the Company may
be issued with such preferred, deferred or other special rights, or such
restrictions, whether in regard to dividend, voting, return of capital,
transfer or transmission, or otherwise as the Company may from time to time by
ordinary resolution determine.
6. Subject to the provisions of Section 57 of the Act, any
preference shares may, with the sanction of an ordinary resolution, be issued
on the terms that they are, or at the option of the Company are liable, to be
redeemed on such terms and in such manner as the Company before the issue of
the shares may by special resolution determine.
7. If at any time the capital is divided into different classes
of shares, the rights attached to any class or any of. such rights, (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 modified, abrogated, or varied
with the consent in writing-of the holders of a majority of the issued shares
of
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that class, or with the sanction of an ordinary resolution passed at a separate
general meeting of the holders of the shares of the class, but not otherwise,
subject however to any right which may be given by the Act to any persons to
apply to the Court to have the variation cancelled. To every such separate
general meeting the provisions of these articles relating to general meetings
shall, mutatis mutandis, apply but so that at every such separate general
meeting the quorum shall be two persons at least holding or representing by
proxy one-third of the issued shares of the class, and that any holder of
shares of the class present in person or by proxy may demand a poll.
8. The rights conferred upon the holders of the shares of any
class issued with preferred or other rights shall be deemed to be varied by the
creation or issue of further shares ranking pari passu therewith provided that
the effect of such an issue is to reduce the proportion of dividends or
distribution payable at any time to the holders of the existing shares of that
class or to diminish the proportion of the total votes exercisable by the
holders of the existing shares of that class.
9. The Company shall not give, whether directly or indirectly,
and whether by means of a loan, guarantee, the provision of security or
otherwise, any financial assistance for the purpose of or in connection with a
purchase or subscription made or to be made by any person of or for any shares
in the Company or in its holding company nor shall the Company make a loan for
any purpose whatsoever on the security of its shares or those of its holding
company:
Provided that nothing in this article shall be taken to
prohibit:
(a) where the lending of money is part of the ordinary business of
the Company, the lending of money in the ordinary course of
its business;
(b) the provisions by the Company in accordance with any scheme
for the time being in force, of money for the purchase of, or
subscription for fully paid shares in the Company or its
holding company, being a purchase of subscription by trustees
of the employees of the Company, including any Director
holding a salaried employment or office in the Company;
(c) the making by the Company of loans to persons other than
Directors, bona fide in the employment of the Company with a
view to enabling those persons to purchase or subscribe for
fully paid shares in the Company or its holding company to be
held by way of beneficial ownership.
10. Subject to the provisions of Section 52 of the Act, the
Company may pay a commission to any person in consideration of his subscribing
or agreeing to subscribe, whether absolutely or conditionally, for any shares
in the Company, or procuring or agreeing to procure subscriptions, whether
absolute or conditional, for any shares in the Company at any rate approved by
the Directors, provided that the rate per centum or the amount of the
commission paid or agreed to be paid shall be disclosed in any manner required
by the Act and the rate of the commission shall not exceed the rate of ten per
centum of the price at which the shares in respect whereof the same is paid are
issued or an amount equal to ten per centum of such price (as the case may be).
Such commission may be satisfied by payment in cash or by the allotment of
fully or partly paid shares, or partly in one way and partly in the other. The
Company may also on any issue of shares pay such brokerage as may be lawful.
11. Except as required by law, no person shall be
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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 by
these articles or by law otherwise provided) any other rights in respect of any
share except an absolute right to the entirety thereof in the registered
holder.
12. Every member shall be entitled without payment to one
certificate under the Seal for all the shares registered in his name, or, in
the case of shares of more than one class being registered in his name, to a
separate certificate for each class of shares so registered. Every certificate
shall specify the number and class of shares in respect of which it is issued
and the distinctive numbers of such shares and the amount paid up thereon
respectively. Every such certificate shall be delivered to the member within
two months after the allotment or within three months of the lodging with the
Company of the transfer, as the case may be, of the shares comprised therein,
unless on allotment the conditions of issue of the shares otherwise provide.
13. If any member shall require additional certificates, he shall
pay for each additional certificate such reasonable sum as the Directors shall
determine.
14. If any certificate be defaced, worn-out, lost or destroyed, a
new certificate may be issued on payment of such reasonable sum as the
Directors may prescribe, and the person requiring the new certificate shall
surrender the defaced or worn-out certificate or give such evidence of the loss
or destruction of the certificate and such indemnity to the Company as the
Directors may think fit.
15. The shares shall be under the control of the Directors, who
may allot and dispose of or grant options over the same to such persons, on
such terms, and in such manner as they think fit. Shares may be issued at par
or at a premium.
JOINT HOLDERS OF SHARES
16. Where two or more persons are registered as the holders of any
share they shall be deemed to hold the same as joint tenants with benefit of
survivorship, subject to the provisions following:
(a) the joint holders of any share shall be liable severally as
well as jointly in respect of all calls and payments which
ought to be made in respect of such share;
(b) on the death of any one of such joint holders the survivor or
survivors shall be the only person or persons recognised by
the Company as having any title to such share; but nothing
herein contained shall release the estate of the deceased
joint holder from any liability in respect of any share which
had been jointly held by him;
(c) any one of such joint holders may give effectual receipts for
any dividend, bonus or return of capital payable to such joint
holders;
(d) only the person whose name stands first in the Register as one
of the joint holders of any, share shall be entitled to
delivery of the certificate relating to such share, or to
receive notices from the Company, and any notice given to such
person shall be deemed notice
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to all the joint holders. Where such person does not register
with the Company an address within the Island, notice may be
given by the Company to any other joint holder and similar
such notice shall be deemed to be notice to all the joint
holders;
(e) any one of the joint holders of any share for the time being
conferring a right to vote may vote either personally or by
proxy at any meeting in respect of such share as if he were
solely entitled thereto, providing that if more than one of
such joint holders be present at any meeting, either
personally or by proxy, the person whose name stands first in
the Register as one of such holders, and no other, shall be
entitled to vote in respect of the said shares;
(f) the Company shall not be obliged to register more than four
persons as joint holders of a share.
LIEN
17. The Company shall have a first and paramount lien upon all
shares held by any member of the Company (whether alone or jointly with other
persons) and upon all dividends and bonuses which may be declared in respect of
such shares, for all debts, obligations and liabilities whatsoever of such
member or his estate to the Company; provided always that if the Company shall
register a transfer of any shares upon which it has such a lien as aforesaid
without giving up to the transferee notice of its claim the said shares shall,
in default of agreement to the contrary between the Company and the transferee
be freed and discharged from the lien of the Company. The Directors may at any
time declare any share to be wholly or in part exempt from the provisions of
this article.
18. The Directors may, at any time after the date for the payment
or satisfaction of such debts, obligations or liabilities shall have arrived,
serve upon any member who is indebted or under any obligation or liability to
the Company, or upon the person entitled to his share by reason of the death or
bankruptcy of such a member, a notice requiring him to pay the amount due to
the Company or satisfy the said obligation or liability and stating that if
payment is not made or the said obligation or liability is not satisfied within
a time (not being less than fourteen days) specified in such notice, the shares
held by such member will be liable to be sold; and if such member or the person
entitled to his shares as aforesaid shall not comply with such notice within
the time aforesaid the Directors may sell such shares without further notice,
and for the purpose of giving effect to any such sale the Directors may
authorise some person to transfer the shares so sold to the purchaser thereof.
19. Upon any sale being made by the Directors of any shares to
satisfy the lien of the Company thereon, the proceeds shall be applied:
firstly, in payment of all costs of such sale; secondly, in satisfaction of the
debts, obligations and liabilities of the members of the Company; and lastly,
the residue (if any) shall be paid to the person entitled to the shares at the
date of the sale, or as he shall in writing direct.
20. An entry in the Directors' Minute Book that any shares have
been sold to satisfy a lien of the Company shall be sufficient evidence as
against all persons claiming to be entitled to such shares that the said shares
were properly forfeited or sold; and such entry, the receipt of the Company for
the price of such shares and the appropriate share certificate, shall
constitute a good title to such shares and subject to the due signature of a
transfer if the same be required, the name of the purchaser or other person
entitled shall be entered in the
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Register as a member of the Company and he shall be entitled to a certificate
of title to the shares, and shall not be bound to see to the application of the
purchase money nor shall his title to the said shares be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture of
sale. The remedy (if any) of the former holder of such shares and of any person
claiming under or through him, shall be against the Company and in damages
only.
CALLS ON SHARES
21. The Directors may from time to time make calls upon the
members in respect of all moneys unpaid on their shares (whether on account of
the nominal amount of the shares or by way of premium) and not by the terms of
issue thereof made payable at any fixed time; provided that no call shall
exceed one fourth of the nominal amount of the share, or be made payable
within one month after the date when the last instalment of the last preceding
call shall have been made payable; and each member shall, subject to receiving
fourteen days' notice at least specifying the time and place for payment, pay
the amount called on his shares to the persons and at the time and place
appointed by the Directors. A call may be made payable by instalments. A call
may be revoked or postponed as the Directors may determine.
22. A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
23. If a call payable in respect of any share or any instalment of
a call be not paid before or on the day appointed for payment thereof, the
holder for the time being of such share shall be liable to pay interest on the
same at such rate, not exceeding ten per centum per annum, as the Directors
shall determine from the day appointed for the payment of such call or
instalment to the time of actual payment; but the Directors may, if they shall
think fit, waive the payment of such interest or any part thereof.
24. If by the terms of issue of any shares, or otherwise, any
amount is made payable at any fixed time, whether on account of the nominal
amount of the shares or by way of premium, every such amount shall be payable
as if it were a call duly made by the Directors of which due notice had been
given; and all the provisions hereof with respect to the payment of calls and
interest thereon, expenses, or to the forfeiture of shares for non-payment of
calls, shall apply to every such amount and the shares in respect of which it
is payable.
25. The Directors may make arrangements on the issue of shares for
a difference between the holders of such shares in the amount of calls to be
paid and the time of payment of such calls.
26. The Directors may, if they think fit, receive from any member
willing to advance the same all or any part of the moneys uncalled and unpaid
upon any shares held by him; and upon all or any of the moneys so paid in
advance the Directors may (until the same would, but for such advance, become
presently payable) pay interest at such rate (not exceeding, without the
sanction of the Company in general meeting, six per centum per annum) as may be
agreed upon between the member paying the moneys in advance and the Directors.
TRANSFER OF SHARES
27. The instrument of transfer of any share in the Company shall
be in writing, and shall be signed by or on behalf of the transferor and the
transferee, and duly attested, and the
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transferor shall be deemed to remain the holder of such share until the name of
the transferee is entered in the Register in respect thereof.
28. The Directors may at any time in their absolute and
uncontrolled discretion and without assigning any reason decline to register
any transfer of shares. The Directors may also suspend the registration of
transfers at such times and for such periods as they may from time to time
determine but so that such registration shall not be suspended for more than
thirty days in any year. The Directors may decline to recognise any instrument
of transfer unless:
(a) a fee not exceeding fifty cents is paid to the Company in
respect therefor;
(b) the instrument of transfer is accompanied by the certificate
of the share 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
(c) the instrument of transfer is in respect of only one class of
share.
29. Subject to the restriction of these articles shares in the
Company may be transferred in any usual or common form or in any other form of
which the Directors shall approve.
29A. Except in the case of the holders of shares by the terms of
issue of which the provisions of this article are excluded or modified no
member shall be entitled to transfer any share otherwise than in accordance
with the following provisions and the Directors shall refuse to register any
transfer of shares made or expressed to be made in contravention of the
provisions of this article:
(i) a member desirous of transferring his shares or any
of them (hereinafter called "the transferring
member") shall give a notice (hereinafter called "the
notice of transfer") to the Secretary of the Company
containing an offer to sell the same, and stating the
number and class of shares which he desires to
transfer and the price which he is willing to accept
for such shares;
(ii) the Secretary shall thereupon send to each of the
other members a circular containing the same
particulars and naming a day (being fourteen days
after the service on him of the notice of transfer)
on or before which offers to purchase the same will
be received. If on or before the day so named offers
to purchase the shares referred to in the notice of
transfer at the price named shall be received from
members of the Company by the Secretary, he shall, as
agent for the transferring member and the proposing
purchaser or purchasers, declare a contract of sale
to be concluded and shall give notice thereof to the
transferring member and the purchaser or purchasers;
(iii) if the offers to purchase shall together constitute
offers to purchase a greater number of shares than
those offered for sale, the shares offered for sale
shall be divided among the proposing purchasers in
the proportions as nearly as possible in which they
already hold shares in the Company: PROVIDED that no
proposing purchaser shall be liable to take more
shares than those he
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shall have offered to purchase, and any shares which
cannot be so divided as aforesaid without creating
fractions shall be apportioned by lot among the
proposing purchasers. The transferring member and the
members declared to be the purchasers of the shares
shall give effect to the contract or contracts so
made as aforesaid by the execution of proper
transfers and the payment of the purchase price;
(iv) if within twenty-one days after the service of the
notice of transfer on the Secretary the transferring
member shall not receive notice that his offer to
sell has been accepted on behalf of some member or
members of the Company, he may within six months from
the date of serving the notice (but subject to the
provisions of article 28) sell or otherwise dispose
of the shares referred to in such notice of transfer
to any other person: PROVIDED that such sale or
disposal be at a price not less than that named in
the notice of transfer; AND PROVIDED FURTHER however
that the transferring member if he so desires may
transfer during his lifetime any shares by way of
gift to any person if he shall first offer the shares
for sale as aforesaid but to the extent only that the
offer is not accepted by the other members, or if the
other members consent to such transfer;
(v) a notice of transfer may be renewed from time to time
but the offer therein contained shall not be
withdrawn until the expiration of twenty-one days
from the service thereof on the Secretary;
(vi) unless specifically authorised in the notice of
transfer the Secretary shall not conclude a contract
of sale for any shares of a lesser amount than is
specified in the notice of transfer;
(vii) if any person shall become entitled to any share by
reason of the death or bankruptcy of any member he
shall be bound forthwith to offer the same for sale
to the members of the Company at a fair price, such
fair price to be determined by agreement between such
person and the Directors, or in default of agreement
by the Auditors for the time being of the Company
whose decision shall be conclusive and binding on the
Company and on all persons interested in the share;
and so soon as the said fair price shall have been
determined the said person shall give to the
Secretary a notice of transfer in the manner
hereinbefore mentioned containing as the price which
he is willing to accept the said fair price, and the
same results shall follow as in the case of a notice
of transfer voluntarily given. If the said person
shall fail to give such notice of transfer the
Directors may, as his agents, give the same for him;
(viii) for the purpose of giving effect to any sale pursuant
to the foregoing provisions of this article the
Directors may authorise some person to execute any
document or do any act in order to transfer the
shares so sold to the purchaser thereof;
(ix) any member may (subject to the provisions of the
article next following) transfer by way of sale or
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otherwise or by will bequeath any share held by him
to trustees in trust for or to a member or members of
his family as hereinafter defined and in such case
the foregoing provisions of this article shall not
apply; and in the case of such bequest the legal
personal representatives of the deceased member may,
subject as aforesaid, transfer the shares so
bequeathed to such trustees (whether themselves or
others) or to the legatee, legatees or beneficiaries.
For the purposes hereof a member of the family of any
member shall include a husband, wife, son, daughter,
grandchild, or a father, mother, brother or sister of
such member, but no other person;
(x) where any shares are held upon trust (whether such
trust be created by deed, will or otherwise) a
transfer thereof may be made upon any change or
appointment of new trustees, but the Directors may
require evidence to satisfy themselves of the facts
in relation to such transfer.
30. 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.
31. The Company shall be entitled to charge such fee not exceeding
fifty cents, as the Directors may from time to time determine for registering
any probate, letters of administration, certificate of marriage or death, power
of attorney, notice in lieu of distringas or other instrument relating to or
affecting the title to any shares.
TRANSMISSION OF SHARES
32. On the death of any member (not being one of two or more joint
holders of a share) the legal personal representatives of such deceased, shall
be the only persons recognised by the Company as having any title to the share
or shares registered in his name.
33. Any person becoming entitled to a share by reason of the death
or bankruptcy of a member may upon such evidence being produced as may from
time to time be required by the Directors, elect either to be registered as a
member in respect of such share or to make and execute such transfer of the
shares as the deceased or bankrupt person could have made. If the person so
becoming entitled shall elect to be registered himself he shall give to the
Company a notice in writing signed by him that he so elects. The Directors
shall in either case have the same right to refuse or suspend registration as
they would have had if the death or bankruptcy of the member had not occurred
and the notice of election or transfer were a transfer executed by that member.
34. Any person becoming entitled to a share by reason of the death
or bankruptcy of the holder shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered holder of
the share, except that he shall not, unless and until he is registered as a
member in respect of the share, be entitled in respect of it to receive notice
of, or to exercise any right conferred by membership in relation to, meetings
of the Company: Provided always that the Directors may at any time give notice
requiring any such person to elect either to be registered himself or to make
such transfer as aforesaid, and if such notice is not complied with within
ninety days after service thereof the Directors may thereafter withhold payment
of all dividends, bonuses or other moneys payable in respect of such share
until the requirement of the
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notice has been complied with.
FORFEITURE OF SHARES
35. If any member fails to pay any call or instalment of a call on
the day appointed for payment thereof, the Directors may, at any time
thereafter during such time as any part of the call or instalment remains
unpaid, serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest on such non-payment.
36. The notice shall name a further day (not being earlier than
the expiration of fourteen days from the date of the notice) on or before which
such call or instalment and all interest accrued and expenses incurred by
reason of such nonpayment are to be paid, and it shall also name the place
where payment is to be made. The notice shall also state that in the event of
nonpayment on or before the time and at the place appointed the shares in
respect of which such call or instalment is payable will be liable to
forfeiture.
37. If the requirements of any such notice as aforesaid be not
complied with, any shares in respect of which such 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 and any such
forfeiture shall extend to all dividends declared in respect of the shares so
forfeited, but not actually paid before such forfeiture.
38. Any shares so forfeited shall be deemed to be the property of
the Company, and may be sold or otherwise disposed of in such manner, either
subject to or discharged from all calls made or instalments due prior to the
forfeiture, as the Directors think fit; or the Directors may, at any time
before such shares are sold or otherwise disposed of, annul the forfeiture upon
such terms as they may approve. For the purpose of giving effect to any such
sale or other disposition the Directors may authorise some person to transfer
the shares so sold or otherwise disposed of to the purchaser thereof or other
person becoming entitled thereto, and he shall thereupon be registered as the
holder of the shares, and shall not be bound to see to the application of the
purchase money, if any, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture,
sale or disposal of the shares.
39. Any person whose shares have been forfeited shall cease to be
a member in respect of the forfeited shares, but shall notwithstanding, remain
liable to pay to the Company all moneys which at the date of the forfeiture
were presently payable by him to the Company in respect of the shares, together
with interest thereon at such rate, not exceeding ten per centum per annum, as
the Directors shall appoint, down to the date of payment, but his liability
shall cease if and when the Company receives payment in full of all such moneys
in respect of the shares, together with interest as aforesaid. The Directors
may, if they shall think fit, remit the payment of such interest or any part
thereof.
40. When any shares have been forfeited an entry shall forthwith
be made in the Register recording the forfeiture and the date thereof, and so
soon as the shares so forfeited have been sold or otherwise disposed of an
entry shall also be made of the manner and date of the sale or disposal
thereof. The entry in the Register or in the Directors' Minute Book recording
forfeiture of the share shall be conclusive evidence of that fact as against
all persons claiming to be entitled to the shares.
41. The provisions of these articles as to forfeiture shall apply
in the case of non-payment of any sum which, by the terms
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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.
ALTERATION OF CAPITAL
42. The Company may by ordinary resolution increase the share
capital of the Company by the creation of new shares, such increase to be of
such aggregate amount and to be divided into shares of such respective amounts
as the resolution shall prescribe.
43. Any capital raised by the creation of new shares shall, unless
otherwise provided by the conditions of issue, be considered as part of the
original capital, and shall be subject to the same provisions with reference to
the payment of calls and the forfeiture of shares on non-payment of calls,
transfer and transmission of shares, lien, or otherwise, as if it had been part
of the original capital.
44. Subject to any direction to the contrary that may be given by
the Company in general meeting, all new shares shall before issue, be offered
to such persons as at the date of the offer are entitled to receive notices
from the Company of general meetings in proportion, as nearly as the
circumstances admit, to the amount of the existing shares to which they are
entitled. The offer shall be made by notice specifying the number of shares
offered, and limiting a time within which the offer, if not accepted will be
deemed to be declined, and after the expiration of that time, or on the receipt
of an intimation from the person to whom the offer is made that he declines to
accept the shares offered, the Directors may dispose of those shares in such
manner as they think most beneficial to the Company. The Directors may likewise
so dispose of any new shares which (by reason of the ratio which the new shares
bear to the shares held by persons entitled to an offer of new shares) cannot,
in the opinion of the Directors, be conveniently offered under this article.
45. The Company may by ordinary resolution:-
(a) subdivide its existing shares, or any of them, into shares of
smaller amount than is fixed by the memorandum of association:
Provided that in the subdivision of an existing share the
proportion between the amount paid and the amount (if any)
unpaid on each reduced share shall be the same as it was in
the case of the share from which the reduced share is derived
and subject to the provisions of Section 61(l) (d) of the Act;
(b) consolidate and divide its capital or any part thereof into
shares of larger amount than its existing shares;
(c) 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.
46. The Company may by special resolution reduce its share capital, any
capital redemption reserve fund and any share premium account in any manner
authorised by law.
GENERAL MEETINGS
47. The first ordinary general meeting shall be held at such time
(within a period of not more than eighteen months from the date of the
Company's incorporation) and at such place as the Directors may determine.
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48. The Company shall in each year hold a general meeting as its
annual general meeting in addition to any other meetings in that year, and
shall specify the meeting as such in the notice calling it, and not more than
fifteen months shall elapse between the date of one annual general meeting of
the Company and that of the next. The annual general meeting shall be held at
such time and place as the Directors shall appoint. All general meetings other
than annual general meetings shall be called "extraordinary general meetings".
49. The Directors may, whenever they think fit, and they shall on
the requisition of members of the Company holding at the date of the deposit of
the requisition not less than one tenth of such of the paid up capital of the
Company as at the date of the deposit carries the right of voting at general
meetings of the Company convene an extraordinary general meeting. The
requisition shall state the objects of the meeting and must be signed by the
requisitionists and deposited at the registered office of the Company and may
consist of several documents in like form each signed by one or more
requisitionists. If the Directors do not within twenty-one days from the date
of the deposit of the requisition proceed duly to convene a meeting the
requisitionists or any of them representing more than one-half of the total
voting rights of all of them may themselves convene a meeting but any meeting
so convened shall not be held after the expiration of three months from the
said date. A meeting convened under this article by the requisitionists shall
be convened in the same manner as nearly as possible as that in which meetings
are to be convened by Directors. Any reasonable expenses incurred by the
requisitionists by reason of the failure of the Directors duly to convene a
meeting shall be repaid to the requisitionists by the Company and any sum so
repaid shall be retained by the Company out of any sums due or to become due
from the Company by way of fees or other remuneration in respect of their
services to such of the Directors as were in default. If at any time there are
not within the Island sufficient Directors capable of acting to form a quorum,
any Director or any two members of the Company may convene an extraordinary
general meeting in the same manner as nearly as possible as that in which
meetings may be convened by the Directors.
50. In the case of an extraordinary general meeting called in
pursuance of a requisition, unless such meeting shall have been called by the
Directors, no business other than that stated in the requisition as the objects
of the meeting shall be transacted.
NOTICE OF GENERAL MEETINGS
51. An annual general meeting and a meeting called for the passing
of a special resolution shall be called by twenty-one days' notice in writing
at the least, and a meeting of the Company other than an annual general meeting
or a meeting for the passing of a special resolution shall be called by
fourteen days' notice in writing at the least. The notice shall be exclusive of
the day on which it is served or deemed to be served and of the day for which
it is given, and shall specify the place, the day and the hour of meeting and,
in case of special business, the general nature of that business, and shall be
given in manner hereinafter mentioned or in such other manner, if any, as may
be prescribed by the Company in general meeting, to such persons as are, under
these articles of the Company, entitled to receive such notices from the
Company.
52. A meeting of the Company shall, notwithstanding that it is
called by a shorter notice than that specified in the last preceding article,
be deemed to have been duly called with regard to length of notice if it is so
agreed:-
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(a) in the case of a meeting called as the annual general meeting,
by all the members entitled to attend and vote thereat; and
(b) in the case of any other meeting, by a majority in number of
the members having the right to attend and vote at the
meeting, being a majority together holding not less than
ninety-five per centum in nominal value of the shares giving
that right.
53. The accidental omission to give notice to any person entitled
under these articles to receive notice of a general meeting, or the non-receipt
by any such person of such notice shall not invalidate the proceedings at that
meeting.
PROCEEDINGS AT GENERAL MEETINGS
54. The business of any ordinary general meeting shall be to
receive and consider the accounts and balance sheets, the reports of the
Directors and auditors and any other documents required by law to be attached
or annexed to the balance sheets, to elect Directors in place of those
retiring, to elect auditors and fix their remuneration and to declare a
dividend. All other business transacted at ordinary general meetings, and all
business (save as above) transacted at an extraordinary general meeting, shall
be deemed special.
55. No business shall be transacted at any general meeting unless
a quorum of members is present and such quorum shall consist of not less than
two members present in person or by proxy.
56. If within half an hour from the time appointed for the meeting
a quorum is not present, the meeting, if convened by or on the requisition of
members, shall be dissolved. In any other case it shall stand adjourned to the
same day in the next week, at the same time and place; and if at such adjourned
meeting a quorum be not present within half an hour from the time appointed for
the meeting, those members who are present shall be deemed to be a quorum, and
may do all business which a quorum might have done.
57. The chairman, if any, of the Board of Directors shall preside
as chairman at every general meeting of the Company. If there be no such
chairman, or if at any meeting he be not present within fifteen minutes after
the time appointed for holding the meeting or is willing to act as chairman,
the members present shall choose one of the Directors present to be chairman;
or if no Director be present and willing to take the chair the members present
shall choose one of their number to be chairman.
58. The chairman may, with the consent of any general meeting at
which a quorum is present (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 meeting is adjourned
for thirty days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Save as aforesaid, it shall not be necessary
to give any notice of an adjourned meeting or of the business to be transacted
thereat.
59. At any general meeting every question shall be decided in the
first instance by a show of hands; and, unless a poll be (on or before the
declaration of the result of the show of hands) directed by the chairman or
demanded by at least two members entitled to vote, a declaration by the
chairman that a resolution
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has been carried or not carried by a particular majority, and an entry to that
effect in the minute Book of the Company shall be conclusive evidence of the
facts, without proof of the number or proportion of the votes recorded in
favour of or against such resolution. The demand for a poll may be withdrawn.
60. If a poll be directed or demanded in the manner before
mentioned it shall (subject to the provisions of article 63 hereof) be taken at
such time (but not more than thirty days after such direction or demand) and in
such manner as the chairman may appoint and the result of such poll shall be
deemed to be the resolution of the meeting at which the poll was directed or
demanded.
61. In the case of an equality of votes at any general meeting, whether on
a show of hands or on a poll, the chairman shall be entitled to a second or
casting vote.
62. No objection to the admission or rejection of any vote shall
be taken except at the meeting or adjourned meeting at which the vote in
dispute is given or tendered. The chairman shall determine any such objection
if made within due time, and such determination shall be final and conclusive.
63. A poll demanded upon the election of a chairman or upon a
question of adjournment shall be taken forthwith. Any business other than that
upon which a poll has been demanded may be proceeded with pending the taking of
the poll.
VOTES OF MEMBERS
64. Subject to any special terms as to voting upon which any
shares or class of shares may for the time being be held, upon a shown of hands
every member present in person or by proxy shall have one vote, and upon a poll
every member present in person or by proxy shall have one vote for every share
held by him. Nothing herein contained shall be deemed to affect the existing
rights attaching to the issued shares in the Company or any class thereof.
65. If any member be a person of unsound mind he may vote by his
committee, receiver, curator bonis, or other legal curator.
66. No member shall be entitled to vote at any general meeting
unless all calls or other sums presently payable by him in respect of shares
held by him in the Company have been paid.
67. All votes may be given either personally or by proxy, but no
member shall be entitled to appoint more than one proxy to attend on the same
occasion.
68. The instrument appointing a proxy shall be in writing under
the hand of the appointer or of his attorney duly authorised in writing, or, if
such appointer be a corporation, either under its common seal or under the hand
of an officer or attorney duly authorised. A proxy shall have the same right as
the member appointing him to speak at the meeting.
69. A proxy need not be a member of the Company.
70. The instrument appointing a proxy and the power of attorney or
other authority, if any, under which it is signed, or a notarially certified or
office copy of such power or authority, shall be deposited at the registered
office not less than forty-eight hours before the time for holding the meeting
or adjourned meeting at which the person named in the instrument proposes to
vote, or in the case of a poll not less than twenty-four hours before the time
appointed for the taking of the poll, and in
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default the instrument of proxy shall not be treated as valid.
71. An instrument appointing a proxy shall be in the form set out
in regulation 70 of Table 'A' in the First Schedule to the Act or in any other
form of which the Directors shall approve. Any member shall be entitled to
appoint a proxy to vote for him at all general meetings of the Company.
72. Where it is desired to afford members an opportunity of voting
for or against a resolution the instrument appointing a proxy shall be in the
form set out in regulation 71 of Table 'A' in the First Schedule to the Act or
in any form of which the Directors shall approve.
73. The instrument appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll.
74. A vote given or act done in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous death or
insanity of the appointer, or revocation of the proxy or of the authority under
which the proxy was executed, on the transfer of the share in respect of which
the proxy is given, unless notice in writing of such death, insanity,
revocation or transfer as aforesaid shall have been received by the Company at
the registered office before the commencement of the meeting or adjourned
meeting or poll at which the vote was given or the act was done.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
75. Any corporation which is a member of the Company may by
instrument in writing under its seal or under the hand of an officer or
attorney so authorised or by a resolution of its Directors or other governing
body appoint any person to act as its representative at any meeting of the
Company or at all meetings of the Company until such instrument in writing or
resolution be revoked by a similar instrument in writing or resolution, and
such representative shall be entitled to exercise the same functions on behalf
of the corporation which he represents as if he had been an individual member
of the Company.
ROUND ROBIN
76. Subject to the provisions of the Act, a resolution in writing
signed by all the members for the time being entitled to receive notice of and
to attend and vote at general meetings (or being corporations by their duly
authorised representatives) shall be as valid and effective as if the same had
been passed at a general meeting of the Company duly convened and held.
DIRECTORS
77. The number of the Directors excluding alternate Directors and
the name of the first Directors shall be determined by an instrument in writing
under the hands of the subscribers to the Memorandum of Association of the
Company or a majority thereof and it shall not be necessary for any meeting of
such subscribers to be convened or held. The number of Directors may at any
time thereafter be increased or reduced as the Company in general meeting shall
determine. In the event that the number of Directors is determined as one, or
only one Director is appointed, any provision in these articles relating to a
quorum of Directors shall be inapplicable and that Director shall have all the
rights and be entitled to exercise all the powers of Directors contained in
these articles.
78. A Director need not be a member of the Company.
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79. The remuneration of the Directors shall be such sum or sums as
may from time to time be determined by them and approved by the Company in
general meeting.
80. The Directors shall be paid such travelling, hotel and other
expenses as may properly be incurred by them in the execution of their duties,
including any such expenses incurred in connection with their attendance at
meetings of Directors and at general meetings or in connection with the
business of the Company.
81. The Directors may award special remuneration out of the funds
of the Company to any Director going or residing abroad in the interest of the
Company, or undertaking any work additional to that usually required of
Directors of a company similar to this.
82. The Company may by ordinary resolution remove any Director
before the expiration of his period of office notwithstanding anything in
these articles or in any agreement between the Company and such Director and
may by ordinary resolution appoint another person in his stead. The person so
appointed shall be treated for the purpose of determining the time at which he
or any other Director is to retire as if he had become a Director on the day on
which the Director in whose place he is appointed was last appointed a
Director.
BORROWING POWERS
83. The Directors may raise or borrow for the purposes of the
Company such sum or sums of money as they think fit. The Directors may secure
the repayment of or raise any such sum or sums as aforesaid and also secure the
repayment of any sum or sums due or owing by the Company or by any other person
by bill of sale, mortgage or charge upon the whole or any part of the property
and assets of the Company, present and future including its uncalled capital,
or by issue, at such price as they may think fit, of bonds, debentures or
debenture stock either charged upon the whole or any part of the property and
assets of the Company or not so charged or by bonds, bills of exchange,
promissory notes or in such other way as the Directors may think expedient.
84. Any bonds debentures debenture stock or other securities
issued or to be issued by the Company shall be under the control of the
Directors who may issue them upon such terms and conditions and in such manner
and for such consideration as they shall consider to be for the benefit of the
Company.
POWERS AND DUTIES OF DIRECTORS
85. The business of the Company shall be managed by the Directors,
who may pay all expenses incurred in the formation and registration of the
Company, and may exercise all such powers of the Company as are not by the Act
or by these articles required to be exercised by the Company in general
meeting, subject, nevertheless to the provisions of these articles and of the
Act, and to such regulations not being inconsistent with the aforesaid
provisions, as may be prescribed by the Company in general meeting; but no
regulation made by the Company in general meeting shall invalidate any prior
act of the Directors which would have been valid if such regulation had not
been made. The general powers conferred upon the Directors by this article
shall not be deemed to be abridged or restricted by any specific power
conferred upon the Directors by any other article.
86. The Directors may from time to time and at any time by power
of attorney appoint any company, firm or person or body of
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persons, whether nominated directly or indirectly by the Directors, to be the
attorney or attorneys of the Company for such purposes and with such powers,
authorities and 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 attorney as the Directors may think fit and may also authorise any such
attorney to delegate all or any of the powers, authorities and discretions
vested in him.
87. The Company may exercise any powers conferred by the Act with
regard to having an official seal for use abroad, and such powers shall be
vested in the Directors.
88. A Director may enter into or be interested in contracts or
arrangements with the Company (whether with regard to any such office or place
of profit or any such acting in a professional capacity or as vendor, purchaser
or otherwise howsoever) and may have or be interested in dealings of any nature
whatsoever with the Company and shall not be disqualified from office thereby.
No such contract, arrangement, or dealing shall be liable to be avoided nor
shall any Director so contracting, dealing or being so interested be liable to
account to the Company for any profit arising out of any such contract,
arrangement, or dealing to which he is a party or in which he is interested by
reason of his being a Director of the Company or of the fiduciary relationship
thereby established. A Director may vote as a Director in respect of any
contract or arrangement in which he is so interested as aforesaid and shall be
counted in the quorum at any meeting at which such matter is considered.
89. A Director may be or continue or may become a Director or
other officer or servant of, or otherwise interested in, any other company in
which the Company is in any way interested and shall not (in the absence of
agreement to the contrary) be liable to account to the Company for any
emoluments or other benefits received or receivable by him as Director, officer
or servant of, or from his interest in such other company.
90. (a) A Director who is, in any way, whether directly or indirectly,
interested in a contract with the Company shall declare the
nature and extent of his interest at a meeting of the
Directors.
(b) In the case of a proposed contract, the declaration required
by this article to be made by a Director shall be made at the
meeting of the Directors at which the question of entering
into the contract is first taken into consideration, or if the
Director was not at the date of that meeting interested in the
proposed contract, at the next meeting of the Directors held
after he became so interested, and in a case where the
Director becomes interested in a contract after it is made,
the said declaration shall be made at the first meeting of the
Directors held after the Director becomes so interested.
(c) For the purpose of this article, a general notice given to the
Directors of the Company by a Director to the effect that he
is a member of a specified company or firm and is to be
regarded as interested in any contract which may, after the
date of the notice be made with that company or firm shall be
deemed to be a sufficient declaration of interest in relation
to any contract so made if the following conditions are
satisfied, that is to say that:
(i) there are stated in the said notice the nature and
extent of the interest of the said Director in
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such company or firm; and
(ii) at the time the question of confirming or entering
into any contract is first taken into consideration
the extent of his interest in such company or firm is
not greater than is stated in the notice; and
(iii) either the notice is given at the meeting of the
Directors or the Director takes all reasonable steps
to secure that it is brought up and read at the next
meeting of the Directors after it is given.
91. A Director may hold any other office or place of profit under
the Company in conjunction with the office of Director for such period and on
such terms as to remuneration and otherwise as the Directors may determine, and
a Director or any firm in which he is interested may act in a professional
capacity for the Company and he or such firm shall be entitled to remuneration
for professional services as if he were not a Director; provided that nothing
contained in these presents shall authorise a Director or any such firm to act
as auditor to the Company.
92. All cheques, promissory notes, drafts, bills of exchange and
other negotiable instruments, and all receipts for moneys 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.
93. The Directors may give or award pensions, annuities,
gratuities and superannuation or other allowances or benefits to any persons
who are or have at any time been Directors of or employed by or in the service
of the Company, or any company which is a subsidiary of the Company and to the
wives, widows, children and other relatives and dependants of any such persons,
and may set up, establish, support and maintain pension, superannuation or
other funds or schemes (whether contributory or non-contributory) for the
benefit of such persons as are hereinbefore referred to or any of them or any
class of them. Any Director shall be entitled to receive and retain for his own
benefit any such pension, annuity, gratuity, allowance or other benefit, and
may vote as a Director in respect of the exercise of any of the powers of this
article conferred upon the Directors notwithstanding that he is or may be or
become interested therein.
94. The Company may upon the issue of any debentures or other
securities confer upon the creditors of the Company holding the same or any
trustees or other persons acting on their behalf, a voice in the management of
the Company, whether by giving them the right of attending and voting at
general meetings or by empowering them to appoint one or more persons to be
Directors of the Company or otherwise as may be agreed.
95. If any Director or other person shall become personally liable
for the payment of any sums primarily due from the Company, the Directors may
execute or cause to be executed any mortgage, charge, bill of sale or security
over or affecting the whole or any part of the assets of the Company by way of
indemnity to secure the Director or person so becoming liable as aforesaid from
any loss in respect of such liability.
96. A register of the holders of debentures of the Company shall
be kept at the office in accordance with the provisions of the Act and shall be
open to the inspection of the registered holders of such debentures and of any
member of the Company, subject to such restrictions as the Company in general
meeting may from time to time impose. The Directors may close such
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register for such period or periods as they think fit, not exceeding in the
aggregate thirty days in each year. The Directors shall cause a proper Register
of Charges to be kept in accordance with Section 102 of the Act and same shall
be kept open for inspection as provided for in the Act.
97. The Directors may exercise or procure the exercise of the
voting rights attached to shares in any other Company in which this Company is
or becomes in any way interested, and may exercise any voting rights to which
they are entitled as Directors of such other company in such manner as they
shall in their absolute discretion think fit, including the exercise thereof in
favour of any resolution appointing themselves or any of them as Directors,
officers or servants of such other company, and fixing their remuneration as
such, and may vote as Directors of this Company in connection with any of the
matters aforesaid.
98. The Directors shall have power at any time and from time to
time to appoint any other person to be a Director of the Company, either to
fill a casual vacancy or as an addition to the Board, but so that the total
number of Directors shall not at any time exceed the maximum number fixed as
hereinbefore mentioned. Any Director so appointed shall hold office only until
the next following annual general meeting, when he shall retire but shall be
eligible for re-election.
DISQUALIFICATION OF DIRECTORS
99. The office of a Director shall be vacated if:-
(a) he becomes bankrupt or makes an arrangement or composition
with his creditors generally;
(b) he becomes of unsound mind;
(c) he absents himself from the meetings of Directors for a period
of six months without special leave of absence from the Board
of Directors;
(d) he resigns his office by not less than thirty days notice in
writing to the Company, but this paragraph shall not apply to
a Managing Director holding office as such for a fixed term;
(e) he ceases to be or become prohibited from being a Director by
reason of any provision in or any order made under the Act;
but any act done in good faith by a Director whose office is vacated as
aforesaid shall be valid unless, prior to the doing of such act, written notice
shall have been served upon the Company or an entry shall have been made in the
Directors' Minute Book stating that such Director has ceased to be a Director
of the Company.
ROTATION OF DIRECTORS
100. At the annual general meeting in every year one-third of the
Directors for the time being, or if their number is not three or a multiple of
three then the number nearest to one-third shall retire from office, the
Directors to retire in each year being those who have been longest in office
since their last election, but as between persons who become Directors on the
same day those to retire shall (unless they otherwise agree among themselves)
be determined by lot. A retiring Director shall be eligible for re-election.
101. The Company at the annual general meeting at which any
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Director retires in manner aforesaid may fill up the vacated office, and may
fill up any other offices which may then be vacant by electing the necessary
number of persons. The Company may also at any extraordinary general meeting,
on notice duly given, fill up any vacancies in the office of Director, or
appoint additional Directors, provided that the maximum number fixed as
hereinbefore mentioned be not exceeded.
102. No person other than a Director retiring at the meeting shall,
unless recommended by the Directors for election, be eligible for election to
the office of Directors at any general meeting unless, not less than seven nor
more than twenty-one days before the day appointed for the meeting there shall
have been left at the office notice in writing signed by a member duly
qualified to attend and vote at such meeting, of his intention to propose such
person for election, and also notice in writing signed by that person of his
willingness to be elected.
103. If at any general meeting at which an election of Directors
ought to take place, the place of any retiring Director be not filled up, such
retiring Director shall (unless a resolution for his re-election shall have
been put to the meeting and lost) continue in office until the annual general
meeting in the next year, and so on from time to time until his place has been
filled up, unless at any such meeting it shall be determined to reduce the
number of Directors in office.
104. The Company may from time to time in general meeting increase
or reduce the number of Directors, and may also determine in what rotation such
increased or reduced number is to go out of office.
PROCEEDINGS OF DIRECTORS
105. The Directors may meet together for the despatch of business,
adjourn and otherwise regulate their meetings as they think fit, and determine
the quorum necessary for the transaction of business. Until otherwise
determined two Directors shall constitute a quorum. Questions arising at any
meeting shall be decided by a majority of votes. In case of an equality of
votes the Chairman shall have a second or casting vote. A Director may, and the
Secretary on the requisition of a Director shall, at any time summon a meeting
of the Directors. It shall not be necessary to give notice of a meeting of
Directors to any Director for the time being absent from the Island.
106. The continuing Directors may act notwithstanding any vacancy
in their body, but if and so long as the number of Directors is reduced below
the number fixed by or pursuant to these articles as the necessary quorum of
Directors, the continuing Directors 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.
107. The Directors may elect a chairman of their meetings and
determine the period for which he is to hold office; but if no such chairman be
elected, or if at any meeting the chairman be not present within five minutes
after the time appointed for holding the same, the Directors present shall
choose some one of their number to be chairman of such meeting.
108. The Directors may delegate any of their powers to committees,
consisting of such one or more of their body as they think fit. Any committee
so formed shall, in the exercise of the powers so delegated conform to any
regulations that may be imposed on it by the Directors. The regulations herein
contained for the meetings and proceedings of Directors shall, so far as not
altered by any regulations made by the Directors apply also to the meetings and
proceedings of any committee.
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109. All acts done by any meeting of the Directors or of a
committee of Directors, or by any persons acting as Directors shall
notwithstanding that it be afterwards discovered that there was some defect in
the appointment of any such Directors or persons acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person had
been duly appointed and was qualified to be a Director.
110. A memorandum in writing signed by all the Directors for the
time being entitled to receive notice of a meeting of Directors and annexed or
attached to the Directors' Minute Book shall be as effective for all purposes
as a resolution of the Directors passed at a meeting duly convened, held and
constituted. Any such memorandum may consist of several documents in like form
each signed by one or more of such Directors.
ALTERNATE DIRECTORS
111. Any Director may, by writing under his hand, appoint any
person (whether a member of the Company or not) who is approved by the Board of
Directors to be his alternate; and every such alternate shall be entitled to
notice of all meetings of Directors and shall be entitled to attend and vote at
meetings of the Directors, and shall have and exercise all the powers, rights,
duties and authorities of the Director appointing him, but shall not be
required to hold or acquire a share qualification: Provided always that no such
appointment shall be operative unless or until the approval of the Board of
Directors shall have been given and entered in the Directors' Minute Book. A
Director may at any time in writing revoke the appointment of an alternate
appointed by him, and, subject to such approval as aforesaid, appoint another
person in his place, and if a Director shall die or cease to hold the office of
Director the appointment of his alternate shall thereupon cease and determine:
Provided nevertheless that if a Director retires by rotation and is re-elected
by the meeting at which such retirement took effect, an appointment made by him
pursuant to this article which was in force immediately prior to his retirement
shall continue to operate after his re-election as if he had not so retired.
All appointments and removals of alternate Directors shall be left with the
Secretary or the chairman of the Directors or may be effected by telegram or
cable sent to the Secretary or the chairman of the Directors.
112. Every person acting as an alternate for a Director shall be an
officer of the Company, and shall alone be responsible to the Company for his
own acts and defaults and he shall not be deemed to be the agent of or for the
Director appointing him. The remuneration of any such alternate shall be
payable out of the remuneration payable to the Director appointing him and
shall consist of such portion of the last mentioned remuneration, as shall be
agreed between the alternate and the Director appointing him, and as is
notified in writing to the Company by the Director making the appointment.
MANAGING DIRECTOR
113. The Directors may from time to time appoint one or more of
their body to be a Managing Director or Managing Directors of the Company, and
may fix his or their remuneration either by way of salary or commission or by
conferring a right to participation in the profits of the Company, or by a
combination of two or more of those modes, and may provide as a term of his
appointment that there be paid to him, his widow or other dependents a pension
or gratuity on retirement or death and the terms of such employment need not be
confirmed by the Company in
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general meeting.
114. Every Managing Director shall, subject to the provisions of
any contract between himself and the Company with regard to his employment as
Managing Director, be liable to be dismissed or removed by the Board of
Directors, and another person may be appointed in his place.
115. A Managing Director shall not, while he continues to hold that
office, be liable to retire by rotation, and he shall not be taken into
account in determining the rotation in which the other Directors shall retire
or the number to retire, but he shall be subject to the same provisions as
regards resignation, removal and disqualification as the other Directors, and
if he ceases to hold office of Director from any cause he shall ipso facto
cease to be a Managing Director.
116. The Directors may from time to time entrust to and confer upon
the Managing Director all or any of the powers of the Directors (excepting the
power to make calls, forfeit shares, borrow money, or issue debentures, or
mortgage or charge the property and assets of the Company) that they may think
fit, but the exercise of all such powers by the Managing Director shall be
subject to such regulations and restrictions as the Directors may from time to
time make and impose, and the said powers may at any time be withdrawn, revoked
or varied.
SECRETARY
117. The Directors shall appoint a Secretary, and shall fix his
remuneration and terms and conditions of employment and any Secretary so
appointed may be removed by them.
118. No person shall be appointed or hold office as Secretary who
is:-
(a) the sole Director of the Company; or
(b) a corporation the sole director of which is the sole Director
of the Company; or
(c) the sole director of a corporation which is the sole Director
of the Company.
119. A provision of the Act or these articles requiring or
authorising a thing to be done by or to a Director and the Secretary shall not
be satisfied by its being done by or to the same person acting both as Director
and as or in the place of the Secretary.
MINUTES
120. 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;
(c) of all resolutions and proceedings at all meetings of the
Company and of Directors and of committees of Directors.
THE SEAL
121. The Directors shall forthwith procure a Seal to be made
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for the Company, and shall provide for the safe custody thereof. Every
instrument to which the Seal shall be affixed shall be signed by a Director and
shall be countersigned by the Secretary or by a second Director or by some
other person appointed by the Directors for the purpose.
DIVIDENDS
122. Subject to the right of the holders of any shares entitled to
any priority preference or special privileges, all dividends shall be declared
and paid to the members in proportion to the amounts paid up on the shares held
by them respectively. No amount paid on a share in advance of calls shall,
while carrying interest, be treated for the purpose of this article as paid on
the share. All dividends shall subject as aforesaid be apportioned and paid
proportionately to the amounts paid up on the shares during any portion or
portions of the period in respect of which the dividend is paid, but if any
share is issued on terms providing that it shall rank for dividend from a
particular date it shall rank accordingly.
123. The Directors shall lay before the Company in general meeting
a recommendation as to the amount (if any) which they consider should be paid
by way of dividend, and the Company shall declare the dividend to be paid, but
such dividend shall not exceed the amount recommended by the Directors.
124. No dividend shall be paid otherwise than out of the profits of
the Company and for the purposes of this article profits shall include all
realised profits whether arising by way of trade or by way of disposal of fixed
assets or investments.
125. The Directors may from time to time pay to the members, or any
class of members, such interim dividends as appear to the Directors to be
justified by the profits of the Company.
126. The Directors may deduct from the dividends payable to any
member all such sums of money as may be due from him to the Company on account
of calls or otherwise howsoever and whether any such indebtedness be
statute-barred or not.
127. The Company may transmit any dividend or bonus payable in
respect of any share by ordinary post to the registered address of the holder
or, in the case of joint holders of one of the holders of such share or to such
person and address as the holder or joint holders may direct, and shall not be
responsible for any loss arising in respect of such transmission.
128. No dividend shall bear interest against the Company.
129. The Directors may with the sanction of the Company in general
meeting, distribute in kind among the members by way of dividend any of the
assets of the Company, and in particular any shares or securities of other
companies to which the Company is entitled: Provided always that no
distribution shall be made which would amount to a reduction of capital except
in the manner appointed by Law.
130. All dividends unclaimed for one year after having been
declared, may be invested or otherwise made use of by the Directors for the
benefit of the Company until claimed and if unclaimed for 12 years may be
forfeited and retained by the Company.
RESERVE FUNDS
131. Before recommending a dividend the Directors may set
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aside any part of the net profits of the Company to a reserve fund, and may
apply the same either by employing it in the business of the Company or by
investing it in such a manner (subject to article 9 hereof) as they shall think
fit, and the income arising from such reserve fund shall be treated as part of
the gross profits of the Company. Such reserve may be applied for the purpose
of maintaining the property of the Company, replacing wasting assets, meeting
contingencies, forming an insurance fund, equalising dividends, paying special
dividends or bonuses, or for any other purpose for which the net profits of the
Company may lawfully be used and until the same shall be so applied it shall be
deemed to remain undivided profit. The Directors may also carry forward to the
accounts of the succeeding year or years any profit or balance of profit which
they shall not think fit to divide or to place to reserve.
ACCOUNTS
132. The Directors shall cause proper books of account (being such
books of account as are necessary to give a true and fair view of the state of
the Company's affairs and to explain its transactions) to be kept with respect
to:-
(a) all sums of money received and expended by the Company, and
the matters in respect of which such receipts and expenditure
take place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
133. The books of account shall be kept at the office, or subject
to the provisions of the Act at such other place or places as the Directors may
determine, and shall always be open to the inspection of the Directors. The
Directors may from time to time by resolution determine whether and to what
extent, and at what times and places, and on what conditions the books and
accounts of the Company, or any of them, shall be open to the inspection of the
members (not being Directors), and the members shall have only such right of
inspection as are given to them by the Act or by such resolution as aforesaid.
134. The Directors shall from time to time, in accordance with
Sections 143 and 145 of the Act, cause to be prepared and to be laid before
the Company in general meeting such profits and loss accounts, balance sheets,
group accounts (if any) and reports as are referred to in those sections.
135. A copy of every balance sheet (including every document
requiring by law to be annexed thereto) which is to be laid before the Company
in general meeting, together with a copy of the auditors' report, shall not
less than twenty-one days before the date of the meeting be sent to every
member of, and every holder of debentures of the Company and to every person
registered under article 33; provided that this article shall not require a
copy of those documents to be sent to any person of whose address the Company
is not aware or to more than one of the joint holders of any shares or
debentures.
CAPITALISATION OF PROFITS
136. The Company in general meeting may upon the recommendation of
the Directors resolve that it is desirable to capitalise any part of the amount
for the time being standing to the credit of the profit and loss account or
otherwise available for distribution and accordingly that such sum be set free
for distribution among the members who would have been entitled thereto if
distributed by way of dividend and in the same
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proportions on condition that the same be not paid in cash but be applied
either in or towards paying up any amounts for the time being unpaid on any
shares held by such members respectively or paying up in full unissued shares
or debentures of the Company to be allotted and distributed credited as fully
paid up to and among such members in the proportion aforesaid or partly in any
one way and partly in the other and the Directors shall give effect to such
resolution: Provided that a share premium account and a capital redemption
reserve fund may, for the purpose of this article only be applied in the paying
up of unissued shares to be issued to members of the Company as fully paid
bonus shares.
137. Whenever such a resolution as aforesaid shall have been passed
the Directors shall make all appropriations and applications of the undivided
profits resolved to be capitalised thereby, and all the allotments and issues
of fully paid shares or debentures, if any, and generally shall do all acts and
things required to give effect thereto with full power to the Directors to make
such provisions by the issue of fractional certificates or by payment in cash
or otherwise as they think fit for the case of shares or debentures becoming
distributable in fractions, and also to authorise any person to enter on
behalf of all the members entitled thereto into an agreement with the Company
providing for the allotment to them respectively, credited as fully paid up of
any further shares or debentures to which they may be entitled upon such
capitalisation, of (as the case may require) for the payment up by the Company
on their behalf, by the application thereto of their respective proportions of
the profits resolved to be capitalised, of the amounts or any part of the
amounts remaining unpaid on their existing shares, and any agreement made under
such authority shall be effective and binding on all such members.
AUDITORS
138. The Company shall at each annual general meeting appoint an
auditor or auditors to hold office from the conclusion of that, until the
conclusion of the next annual general meeting. The remuneration of the auditors
shall be fixed by the Company in general meeting or in such manner as the
Company in general meeting shall determine. In all other respects auditors
shall be appointed and their duties regulated in accordance with Sections 153
to 156 of the Act.
NOTICES
139. A notice may be served by the Company upon any member either
personally or by sending it through the post addressed to such member at his
registered address supplied by him to the Company for the giving of notice to
him.
140. No member shall be entitled to have a notice served on him at
any address not in Jamaica, but any member whose registered address is not in
Jamaica may by notice in writing require the Company to register an address in
Jamaica, which, for the purpose of the service of notices, shall be deemed to
be his registered address. A member who has no registered address in Jamaica,
and has not given notice as aforesaid, shall not be entitled to receive any
notices from the Company.
141. Any notice, if sent by post, shall be deemed to have been
served at the expiration of forty-eight hours after the same shall have been
posted; and in proving such service it shall be sufficient to prove that the
envelope containing the notice was properly addressed and stamped and put into
the Post Office or into any post box subject to the control of the Postmaster
General.
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142. A notice may be given by the Company to the person entitled to
a share in consequence of the death or bankruptcy of a member by sending it
through the post in a prepaid letter addressed to him by name, or by the title
of representatives of the deceased, or trustee of the bankrupt, or by any like
description, at the address, if any, in Jamaica supplied for the purpose by the
person claiming to be so entitled, or (until such address has been so supplied)
by giving the notice in any manner in which the same might have been given if
the death or bankruptcy had not occurred.
143. Subject to such restrictions affecting the right to receive
notices as are for the time being applicable to the holders of any shares,
notice of every general meeting shall be given in any manner hereinbefore
authorised to:-
(a) every member except those members who (having no registered
address in Jamaica) have not supplied to the Company an
address in Jamaica for the giving of notices to them; and
(b) every person upon whom the ownership of a share devolves by
reason of his being a legal personal representative or a
trustee in bankruptcy of a member where the member but for his
death or bankruptcy would be entitled to receive notice of the
meeting; and
(c) the auditor for the time being of the Company.
No other person shall be entitled to receive notices of general meetings.
DISCOVERY OF SECRETS
144. No member shall be entitled to require or receive any
information concerning the business, trading or customers of the Company, or
any trade secret or secret process of or used by the Company beyond such
information as to the accounts and business of the Company as is by the Act or
these articles directed to be placed before the Company in general meeting, and
no member shall be entitled to inspection of any of the books, papers,
correspondence or documents of the Company except so far as such inspection is
authorised by these articles or by the Act.
INDEMNITY
145. The Company shall indemnify every Director and other officer
and servant of the Company against all losses, costs and expenses (including
travelling expenses) in any way incurred by him in the proper discharge of his
duties, and the Directors shall pay or retain the same out of the funds of the
Company. If any Director or other officer of the Company is guilty of actual
fraud or dishonesty whereby the Company incurs any loss or damage, such
Director or other officer shall be liable to recoup the same to the Company.
Except as aforesaid, no officer of the Company shall be liable to the Company
for any loss, damage, costs or expenses that may happen to or be incurred by
the Company in consequence of any act, omission or default by such officer
while purporting to act as such.
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WINDING UP
146. If the Company shall be wound up the assets remaining after
payment of the debts and liabilities of the Company and the costs of
liquidation shall be applied: first, in repaying the members the amounts paid
up on the shares held by them respectively; and the balance, (if any) shall be
distributed among the members in proportion to the number of shares held by
them respectively: provided always that the provisions hereof shall be subject
to the rights of the holders of shares (if any) issued upon special conditions.
147. In a winding up of any of the assets of the Company including
any shares in or securities of other companies may, with the sanction of an
ordinary resolution of the Company, be divided among the members of the Company
in specie or may, with the like sanction be vested in trustees for the benefit
of such members and the liquidation of the Company may be closed and the
Company dissolved, but so that no member shall be compelled to accept any
shares whereon there is any liability.
SIGNATURES ADDRESSES & DESCRIPTIONS
OF SUBSCRIBERS
1. MF& G CORPORATE SERVICES LIMITED
A Company Limited by shares
21 East Street
Kingston
BY: /s/ ANNA YOUNG
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ANNA YOUNG
SECRETARY
2. /s/ PANCETA MURRAY
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PANCETA MURRAY
21 East Street
Kingston
Clerk/Typist
DATED the 26th day of September 1995.
WITNESS to the above signatures:-
Name: /s/ COLLEEN JONES
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Address: 21 East Street
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Kingston
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