EXHIBIT 3.6(B)
THE COMPANIES LAW (2000 REVISION)
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
SEAGATE REMOVABLE STORAGE SOLUTIONS HOLDINGS
Amended and Restated by Special Resolution of the Sole Shareholder
dated _______________
INTERPRETATION
1. In these Articles Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context inconsistent
therewith,
"ARTICLES" means these Articles as originally framed or
as from time to time altered by Special
Resolution.
"AUDITORS" means the persons for the time being
performing the duties of auditors of the
Company.
"BOARD" means the board of directors of the Company.
"COMMON SHARES" has the meaning given in the Company's
Memorandum of Association.
"COMPANY" means the above-named Company.
"DEBENTURE" means debenture stock, mortgages, bonds and
any other such securities of the Company
whether constituting a charge on the assets
of the Company or not.
"DIRECTORS" means the directors for the time being of
the Company.
"DIVIDEND" includes bonus.
"EXTRAORDINARY
DISTRIBUTION" means any distribution to the holders of the
Preferred Shares of (i) securities of any
subsidiary of the Company in a spin-off or
spin-out transaction or (ii) the proceeds
from the sale or other disposition of the
assets or outstanding capital stock of any
such subsidiary.
"FAIR MARKET VALUE" means: (a) in the case of property other
than cash or securities, the market value of
such property on the date in question as
determined in good faith by the Board; and
(b) in the case of securities, the average
of the daily closing prices of the
securities for the ten consecutive trading
days ending on and including such date of
determination. The closing price for each
day shall be: (i) if the securities are
listed on the NASDAQ National Market, the
last reported sale price of such securities
on the NASDAQ National Market, or any
similar system of automated dissemination of
quotations of securities prices then in
common use, if so quoted, (ii) if the
securities are not listed or admitted for
trading as described in clause (i), the last
reported sale price of such securities on
the NYSE, or if such securities are listed
or admitted for trading on any other
national securities exchange, the last sale
price, or the closing bid price if no sale
occurred, of such securities on the
principal securities exchange on which the
securities are listed, or (iii) if not
quoted or listed as described in clauses (i)
or (ii), the mean between the high bid and
low asked quotations for such securities as
reported by the National Quotation Bureau
Incorporated if at least two securities
dealers have inserted both bid and asked
quotations for the securities on at least
five of the ten preceding Trading Days. If
none of the conditions set forth above is
met, the last reported sale price of the
securities on any day or the average of such
last reported sale prices for any period
shall be the fair market value of the
securities as determined by a member firm of
the NYSE selected by the Company.
"IPO" means a firm commitment underwriting public
offering of the Common Shares pursuant to an
effective registration statement filed under
the U.S. Securities Act of 1933, as amended,
which yields
2
the Company net proceeds in an amount not
less than $25 million.
"LIQUIDATION EVENT" means any liquidation, dissolution, or
winding up of the Company, whether voluntary
or involuntary. For purposes of these
Articles, (a) a consolidation or merger of
the Company with or into any other company
or any subsidiary thereof, other than a
merger or consolidation in which securities
representing more than 50% of the total
combined voting power of the voting
securities of the successor corporation are
immediately thereafter beneficially owned,
directly or indirectly and in substantially
the same proportion, by the persons who
beneficially owned the Company's outstanding
voting securities immediately prior to such
transaction; (b) a sale of all, or
substantially all, of the assets of the
Company or (c) a series of transactions in
which more than 50% of the voting power of
the Company is disposed of shall be deemed
to be within the purview of a liquidation,
dissolution, or winding up.
"MEMBER" shall bear the meaning as ascribed to it in
the Statute.
"MONTH" means calendar month.
"PAID-UP" means paid-up and/or credited as paid-up.
"PREFERRED SHARES" has the meaning given in the Company's
Memorandum of Association.
"REGISTERED OFFICE" means the registered office for the time
being of the Company.
"SEAL" means the common seal of the Company and
includes every duplicate seal.
"SECRETARY" includes an Assistant Secretary and any
person appointed to perform the duties of
Secretary of the Company.
"SERIES A PREFERRED
SHARES" has the meaning given in the Company's
Memorandum of Association.
"SERIES A STATED AMOUNT" means US $1.60 per Series A Preferred Share.
3
"SPECIAL RESOLUTION" has the same meaning as in the Statute and
includes a resolution approved in writing as
described therein.
"STATUTE" means the Companies Law of the Cayman
Islands as amended and every statutory
modification or re-enactment thereof for the
time being in force.
"WRITTEN" and "IN WRITING" include all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa. Words importing the masculine gender only include the
feminine gender. Words importing persons only include corporations.
PRELIMINARY
2. The business of the Company may be commenced as soon after
incorporation as the Directors shall see fit, notwithstanding that part
only of the shares may have been allotted or issued.
3. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and
establishment of the Company including the expenses of registration.
SHARES
4. Except as otherwise provided in these Articles, all shares in the
capital of the Company for the time being and from time to time
unissued shall be under the control of the Board and may be
re-designated, allotted, or disposed of in such manner, to such
persons, and on such terms as the Board, in its discretion, may think
fit.
COMMON SHARES
5. The holders of Common Shares shall be entitled to receive such
dividends and distributions as may be declared from time to time by the
Board. Such dividends and distributions shall be from such assets
lawfully available therefor as the Directors may determine and shall
otherwise be paid and/or made as provided in these Articles.
6. After payment in full of the Liquidation Preference (as such term is
defined below) to the holders of Preferred Shares who are entitled to
such Liquidation Preference pursuant to a resolution of the Board or
pursuant to these Articles (the "ELIGIBLE PREFERRED SHAREHOLDERS"), any
remaining assets of the Company that are legally available for
distribution, if any, shall be distributed ratably among (a) any
Eligible Preferred Shareholder who (after having received the
Liquidation Preference) has the right to participate in such
distribution pursuant to a written resolution of the Board or pursuant
to these Articles and
4
(b) the holders of Common Shares on a pro rata basis.
7. Any dividend distributed other than in cash by the Company to the
holders of Common Shares pursuant to these Articles will be valued at
the Fair Market Value of the property being transferred as such
dividend.
8. Each holder of Common Shares shall have one vote in respect of each
Common Share held by such holder at general meetings of the Company.
PREFERRED SHARES
9. The Preferred Shares may be issued from time to time in one or more
series pursuant to any resolution of the Board that provides for such
issuance. The Board may determine the rights, preferences, privileges,
and restrictions granted to, or imposed upon, any wholly unissued
series of Preferred Shares and to fix the number of shares of any
series of Preferred Shares and the designation of any such series of
Preferred Shares, in all cases on or prior to the issue of Preferred
Shares of such series. The Board may increase or decrease (but not
below the number of shares in any such series then outstanding) the
number of authorized shares of any series subsequent to the issue of
shares of that series. The authority of the Board with respect to each
such class or series shall include, without limitation of the
foregoing, the right to determine and fix (prior to issue):
(a) the distinctive designation of such class or series and the
number of shares to constitute such class or series;
(b) the rate and frequency at which dividends on the shares of
such class or series shall be declared and paid, or set aside
for payment, whether dividends at the rate so determined shall
be cumulative or accruing, and whether the shares of such
class or series shall be entitled to any participating or
other dividends in addition to dividends at the rate so
determined, and if so, on what terms;
(c) the right or obligation, if any, of the Company to redeem
shares of the particular class or series of Preferred Shares
and, if redeemable, the price, terms, and manner of such
redemption;
(d) the special and relative rights and preferences, if any, and
the amount per share that the shares of such class or series
of Preferred Shares shall be entitled to receive upon any
Liquidation Event;
(e) the terms and conditions, if any, whereby shares of such class
or series shall be convertible into, or exchangeable for,
shares of any other class or series, including the price or
rate of conversion or exchange and the terms of adjustment, if
any (such conversion or exchange to be by means of redemption
and reissue of shares of the other class or series);
(f) the obligation, if any, of the Company to redeem or purchase
shares of such class or
5
series and the terms and conditions of such obligation;
(g) the voting rights, in any, on the issuance of additional
shares of such class or series or any shares of any other
class or series of Preferred Shares;
(h) the limitations, if any, on the issuance of additional shares
of such class or series or any shares of any other class or
series of Preferred Shares; and
(i) such other preferences, powers, qualifications, special or
relative rights, and privileges thereof as the Board, acting
in accordance with these Articles, may deem advisable and not
inconsistent with Cayman Islands law and the Statute.
SERIES A PREFERRED SHARES
10. The holders of Series A Preferred Shares shall be entitled to receive
and to participate in such dividends and distributions as may be
declared from time to time by the Board. Such dividends and
distributions shall be paid and/or made on a pari passu basis with
dividends and distributions on or in respect of Common Shares. Such
dividends may be made in cash or specie as the Directors determine.
11. Any dividend distributed other than in cash by the Company to the
holders of Series A Preferred Shares pursuant to these Articles
(including the Extraordinary Distributions) will be valued at the Fair
Market Value of the property being transferred as such dividend.
12. (a) Following any Liquidation Event, before any distribution or
payment shall be made to the holders of any Common Shares, the
holders of Series A Preferred Shares shall be entitled to be
paid out of the remaining assets of the Company that are
legally available for distribution with respect to all shares
of Series A Preferred Shares then outstanding an amount in
cash (to be shared ratably by the holders of Series A
Preferred Shares) equal to the excess of (i) US $1.60 per
Series A Preferred Share over (ii) the amount of any
Extraordinary Distributions previously paid per Series A
Preferred Share (the "LIQUIDATION PREFERENCE").
(b) After payment in full of the Liquidation Preference to the
Eligible Preferred Shareholders, any remaining assets of the
Company that are legally available for distribution shall be
further distributed ratably among (i) the holders of Series A
Preferred Shares, (ii) the holders of Common Shares, and (iii)
any Eligible Preferred Shareholder (other than holders of
Series A Preferred Shares) who has the right to participate in
such distribution pursuant to a written resolution of the
Board or pursuant to these Articles.
(c) If, upon any such Liquidation Event, the remaining assets of
the Company that are legally available for distribution to its
shareholders are insufficient to pay the holders of Series A
Preferred Shares the full Liquidation Preference on each
Series A Preferred Share, then the holders of Series A
Preferred Shares shall share ratably in any distribution of
such remaining assets in proportion to the respective amounts
6
that would otherwise be payable in respect of the shares held
by them upon such distribution if all amounts payable on or
with respect to such shares were paid in full.
(d) Subject to Articles 24 and 25, at any time when Series A
Preferred Shares are outstanding, without the written consent
of the holders of a majority of the then outstanding Series A
Preferred Shares, the Company shall not create, or authorize
the creation of, any additional class or series of shares that
ranks senior to the Series A Preferred Shares with respect to
the distribution of assets upon any Liquidation Event.
13. The payment in full of the Liquidation Preference on each Series A
Preferred Share shall automatically constitute the redemption in full
of that Series A Preferred Share. To the extent that Series A Preferred
Shares are redeemed in full, such Series A Preferred Shares shall be
cancelled, and the issued share capital of the Company shall be reduced
by the nominal value of the shares so redeemed. The redemption shall
not be taken as reducing the authorized share capital of the Company.
14. The holders of Series A Preferred Shares shall be entitled to vote upon
any and all matters upon which holders of Common Shares have the right
to vote.
15. With respect to each Series A Preferred Share held by the holders
thereof, each such holder shall have a number of votes that is equal to
the number of Common Shares into which the Series A Preferred Shares
could be converted, and such votes shall be counted together with all
other shares (including the Common Shares) of the Company and not
separately as a class.
16. The Series A Preferred Shares shall be convertible into Common Shares
as follows:
(a) CONVERSION RIGHT
Any holder of Series A Preferred Shares shall have the right,
at such holder's option, at any time or from time to time, to
convert any of such holder's Series A Preferred Shares into
such number of Common Shares as is determined by (x) dividing
the Series A Stated Amount by the Conversion Price (defined
below) in effect at the time of the conversion and (y)
multiplying such quotient by the number of Series A Preferred
Shares to be converted. The "CONVERSION Price" shall initially
be US $1.60 per share. Such Conversion Price shall be subject
to adjustment as hereinafter provided.
(b) MECHANICS OF CONVERSION
Any holder of Series A Preferred Shares may exercise the
conversion right specified herein by surrendering to the
Company the certificate(s) for the Series A Preferred Shares
to be converted, accompanied by written notice specifying the
number of the shares to be converted.
7
Conversion shall be deemed to have been effected on the date
when delivery of notice of an election to convert and
certificates for shares is made (such date is referred to
herein as the "CONVERSION DATE").
Subject to the provisions of subparagraph (d)(v), as promptly
as practicable thereafter, the Company shall make appropriate
entries in the Register of Members, cancel the relevant Series
A Preferred Share certificates and issue and deliver to such
holder certificate(s) for the number of full Common Shares to
which such holder is entitled and a check or cash with respect
to any fractional interest in a Common Share as provided in
subparagraph (c).
The person whose name has been entered on the Register of
Members shall be the legal owner of the Common Shares on the
applicable Conversion Date.
Upon conversion of only a portion of the number of shares
covered by a certificate representing the Series A Preferred
Shares surrendered for conversion, the Company shall issue and
deliver to such holder, at the expense of the Company, a new
certificate covering the number of Series A Preferred Shares
representing the unconverted portion of the certificate so
surrendered.
(c) FRACTIONAL SHARES
No fractions of Common Shares shall be issued upon conversion
of the Series A Preferred Shares. If more than one Series A
Preferred Share shall be surrendered for conversion at any one
time by the same holder, the number of full Common Shares
issuable upon conversion thereof shall be computed on the
basis of the aggregate number of Series A Preferred Shares so
surrendered. Instead of any fractions of Common Shares that
would otherwise be issuable upon conversion of any Series A
Preferred Shares, the Company shall pay a cash adjustment in
respect of such fractional interest in an amount equal to that
fractional interest multiplied by the then effective
Conversion Price.
(d) CONVERSION PRICE ADJUSTMENTS
The Conversion Price shall be subject to adjustment from time
to time as follows:
(i) Bonus Issue, Subdivision or Split
If the number of Common Shares outstanding at any
time after the date hereof is increased by a bonus
issue of Common Shares or by a subdivision of Common
Shares, then, on the date such issue or subdivision
is made, the Conversion Price shall be appropriately
decreased so that the number of Common Shares
issuable on conversion of any Series A Preferred
Shares shall be increased in proportion to such
increase of outstanding shares.
8
(ii) Combination
If the number of Common Shares outstanding at any
time after the date hereof is decreased by a
combination of the outstanding Common Shares, then,
on the effective date of such combination, the
Conversion Price shall be appropriately increased so
that the number of Common Shares issuable on
conversion of any shares of Series A Preferred Shares
shall be decreased in proportion to such decrease in
outstanding shares.
(iii) Consolidation, Merger, Sale, Lease or Conveyance
In case of any consolidation with or merger of the
Company with or into another company, or in case of
any sale, lease, or conveyance to another company of
the assets of the Company as an entirety or
substantially as an entirety, each Series A Preferred
Share shall after the date of such consolidation,
merger, sale, lease, or conveyance be convertible
into the number of shares or other securities or
property (including cash) to which the Common Shares
issuable (at the time of such consolidation, merger,
sale, lease, or conveyance) upon conversion of such
Series A Preferred Share would have been entitled
upon such consolidation, merger, sale, lease, or
conveyance; and in any such case, if necessary, the
provisions set forth herein with respect to the
rights and interests thereafter of the holders of
Series A Preferred Shares shall be appropriately
adjusted so as to be applicable, as nearly as may
reasonably be, to any shares or other securities or
property thereafter deliverable on the conversion of
the Series A Preferred Shares.
(iv) Rounding of Calculations; Minimum Adjustment
All calculations under this subparagraph (d) shall be
made to the nearest cent (in U.S. currency) or to the
nearest one hundredth (1/100th) of a share, as the
case may be.
(v) Timing of Issuance of Additional Common Shares Upon
Certain Adjustments
In any case in which the provisions of this
subparagraph (d) shall require that an adjustment
shall become effective immediately after a record
date for an event, the Company may defer until the
occurrence of such event (A) issuing to the holder of
Series A Preferred Shares converted after such record
date and before the occurrence of such event the
additional Common Shares issuable upon such
conversion by reason of the adjustment required by
such event over and above the Common Shares issuable
upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount
of cash in lieu of a fractional share of Common Share
pursuant to subparagraph (c).
9
(e) AUTOMATIC CONVERSION
Upon the closing of the IPO, each outstanding Series A
Preferred Share shall automatically be converted into one or
more Common Shares on the basis of the Conversion Price then
in effect. Such automatic conversion shall be effected in
substantially the same manner as set forth in subparagraph (b)
of this Section 16, with the closing of the IPO to
automatically constitute the Conversion Date.
CERTIFICATES FOR SHARES
17. Certificates representing shares of the Company shall be in such form
as shall be determined by the Directors. Such certificates may be under
Seal. All certificates for shares shall be consecutively numbered or
otherwise identified and shall specify the shares to which they relate.
The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall
be entered in the register of Members of the Company. All certificates
surrendered to the Company for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled. The
Directors may authorise certificates to be issued with the seal and
authorised signature(s) affixed by some method or system of mechanical
process.
18. Notwithstanding Article 17 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on payment of a fee of
one dollar (US$l.00) or such less sum and on such terms (if any) as to
evidence and indemnity and the payment of the expenses incurred by the
Company in investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
19. Subject to the provisions, if any, in that behalf hereinbefore
contained or in the Memorandum of Association and without prejudice to
any special rights previously conferred on the holders of existing
shares, the Directors may allot, issue, grant options over or otherwise
dispose of shares of the Company (including fractions of a share) with
or without preferred, deferred or other special rights or restrictions,
whether in regard to dividend, voting, return of capital or otherwise
and to such persons, at such times and on such other terms as they
think proper.
20. The Company shall maintain a register of its Members and every person
whose name is entered as a Member in the register of Members shall be
entitled without payment to receive within two months after allotment
or lodgement of transfer (or within such other period as the conditions
of issue shall provide) one certificate for all his shares or several
certificates each for one or more of his shares upon payment of fifty
cents (US$0.50) for every certificate after the first or such less sum
as the Directors shall from time to time determine provided that in
respect of a share or shares held jointly by several persons the
Company shall not be bound to issue more than one certificate and
delivery of a certificate for a share to one of the several joint
holders shall be sufficient delivery to all such holders.
10
TRANSFER OF SHARES
21. The instrument of transfer of any share shall be in writing and shall
be executed by or on behalf of the transferor and the transferor shall
be deemed to remain the holder of a share until the name of the
transferee is entered in the register in respect thereof.
22. The registration of transfers may be suspended at such time and for
such periods as the Directors may from time to time determine, provided
always that such registration shall not be suspended for more than
forty-five days in any year.
REDEEMABLE SHARES
23. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are,
or at the option of the Company or the holder are, to be
redeemed on such terms and in such manner as the Company,
before the issue of the shares, may by Special Resolution
determine.
(b) Subject to the provisions of the Statute and the Memorandum of
Association, the Company may purchase its own shares
(including fractions of a share), including any redeemable
shares, provided that the manner of purchase has first been
authorised by the Company in general meeting and may make
payment therefor in any manner authorised by the Statute,
including out of capital.
VARIATION OF RIGHTS OF SHARES
24. If at any time the share capital of the Company is divided into
different classes of shares, the rights attached to any class (unless
otherwise provided by the terms of issue of the shares of that class)
may be varied with the consent in writing of the holders of
three-fourths of the issued shares of that class, or with the sanction
of a Special Resolution passed at a general meeting of the holders of
the shares of that class.
The provisions of these Articles relating to general meetings shall
apply to every such general meeting of the holders of one class of
shares except that the necessary quorum shall be one person holding or
representing by proxy at least one-third of the issued shares of the
class and that any holder of shares of the class present in person or
by proxy may demand a poll.
25. The rights conferred upon the holders of the shares of any class issued
with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed
to be varied by the creation or issue of further shares ranking pari
passu therewith.
COMMISSION ON SALE OF SHARES
26. The Company may in so far as the Statute from time to time permits pay
a commission to
11
any person in consideration of his subscribing or agreeing to subscribe
whether absolutely or conditionally for any shares of the Company. Such
commissions may be satisfied by the payment of cash or the lodgement of
fully or partly paid-up shares or partly in one way and partly in the
other. The Company may also on any issue of shares pay such brokerage
as may be lawful.
NON-RECOGNITION OF TRUSTS
27. No person shall be recognised by the Company as holding any share upon
any trust and the Company shall not be bound by or be compelled in any
way to recognise (even when having notice thereof) any equitable,
contingent, future, or partial interest in any share, or any interest
in any fractional part of a share, or (except only as is otherwise
provided by these Articles or the Statute) any other rights in respect
of any share except an absolute right to the entirety thereof in the
registered holder.
LIEN ON SHARES
28. The Company shall have a first and paramount lien and charge on all
shares (whether fully paid-up or not) registered in the name of a
Member (whether solely or jointly with others) for all debts,
liabilities or engagements to or with the Company (whether presently
payable or not) by such Member or his estate, either alone or jointly
with any other person, whether a Member or not, but the Directors may
at any time declare any share to be wholly or in part exempt from the
provisions of this Article. The registration of a transfer of any such
share shall operate as a waiver of the Company's lien (if any) thereon.
The Company's lien (if any) on a share shall extend to all dividends or
other monies payable in respect thereof.
29. The Company may sell, in such manner as the Directors think fit, any
shares on which the Company has a lien, but no sale shall be made
unless a sum in respect of which the lien exists is presently payable,
nor until the expiration of fourteen days after a notice in writing
stating and demanding payment of such part of the amount in respect of
which the lien exists as is presently payable, has been given to the
registered holder or holders for the time being of the share, or the
person, of which the Company has notice, entitled thereto by reason of
his death or bankruptcy.
30. To give effect to any such sale the Directors may authorise some person
to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares comprised in any such
transfer, and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
31. The proceeds of such sale shall be received by the Company and applied
in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject
to a like lien for sums not presently payable as existed upon the
shares before the sale) be paid to the person entitled to the shares at
the date of the sale.
12
CALL ON SHARES
32. (a) The Directors may from time to time make calls upon the
Members in respect of any monies unpaid on their shares
(whether on account of the nominal value of the shares or by
way of premium or otherwise) and not by the conditions of
allotment thereof made payable at fixed terms, provided that
no call shall be payable at less than one month from the date
fixed for the payment of the last preceding call, and each
Member shall (subject to receiving at least fourteen days
notice specifying the time or times of payment) pay to the
Company at the time or times so specified the amount called on
the shares. A call may be revoked or postponed as the
Directors may determine. A call may be made payable by
instalments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a share shall be jointly and severally
liable to pay all calls in respect thereof.
33. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due
shall pay interest on the sum from the day appointed for payment
thereof to the time of actual payment at such rate not exceeding ten
per cent per annum as the Directors may determine, but the Directors
shall be at liberty to waive payment of such interest either wholly or
in part.
34. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value
of the share or by way of premium or otherwise, shall for the purposes
of these Articles be deemed to be a call duly made, notified and
payable on the date on which by the terms of issue the same becomes
payable, and in the case of non-payment all the relevant provisions of
these Articles as to payment of interest forfeiture or otherwise shall
apply as if such sum had become payable by virtue of a call duly made
and notified.
35. The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times
of payment.
36. (a) The Directors may, if they think fit, receive from any Member
willing to advance the same, all or any part of the monies
uncalled and unpaid upon any shares held by him, and upon all
or any of the monies so advanced may (until the same would but
for such advances, become payable) pay interest at such rate
not exceeding (unless the Company in general meeting shall
otherwise direct) seven per cent per annum, as may be agreed
upon between the Directors and the Member paying such sum in
advance.
(b) No such sum paid in advance of calls shall entitle the Member
paying such sum to any portion of a dividend declared in
respect of any period prior to the date upon which such sum
would, but for such payment, become presently payable.
13
FORFEITURE OF SHARES
37. (a) If a Member fails to pay any call or instalment of a call or
to make any payment required by the terms of issue on the day
appointed for payment thereof, the Directors may, at any time
thereafter during such time as any part of the call,
instalment or payment remains unpaid, give notice requiring
payment of so much of the call, instalment or payment as is
unpaid, together with any interest which may have accrued and
all expenses that have been incurred by the Company by reason
of such non-payment. Such notice shall name a day (not earlier
than the expiration of fourteen days from the date of giving
of the notice) on or before which the payment required by the
notice is to be made, and shall state that, in the event of
non-payment at or before the time appointed the shares in
respect of which such notice was given will be liable to be
forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has
been given may at any time thereafter, before the payment
required by the notice has been made, be forfeited by a
resolution of the Directors to that effect. Such forfeiture
shall include all dividends declared in respect of the
forfeited share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Directors think fit and at any
time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit.
38. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all monies which, at the date of
forfeiture were payable by him to the Company in respect of the shares
together with interest thereon, but his liability shall cease if and
when the Company shall have received payment in full of all monies
whenever payable in respect of the shares.
39. A certificate in writing under the hand of one Director or the
Secretary of the Company that a share in the Company has been duly
forfeited on a date stated in the declaration shall be conclusive
evidence of the fact therein stated as against all persons claiming to
be entitled to the share. The Company may receive the consideration
given for the share on any sale or disposition thereof and may execute
a transfer of the share in favour of the person to whom the share is
sold or disposed of and he shall thereupon be registered as the holder
of the share and shall not be bound to see to the application of the
purchase money, if any, nor shall his title to the share be affected by
any irregularity or invalidity in the proceedings in reference to the
forfeiture, sale or disposal of the share.
40. The provisions of these Articles as to forfeiture shall apply in the
case of non-payment of any sum which, by the terms of issue of a share,
becomes payable at a fixed time, whether on account of the nominal
value of the share or by way of premium as if the same had been payable
by virtue of a call duly made and notified.
14
REGISTRATION OF EMPOWERING INSTRUMENTS
41. The Company shall be entitled to charge a fee not exceeding one dollar
(US$l.00) on the registration of every probate, letters of
administration, certificate of death or marriage, power of attorney,
notice in lieu of distringas, or other instrument.
TRANSMISSION OF SHARES
42. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of
the deceased where he was a sole holder, shall be the only persons
recognised by the Company as having any title to his interest in the
shares, but nothing herein contained shall release the estate of any
such deceased holder from any liability in respect of any shares which
had been held by him solely or jointly with other persons.
43. (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy or liquidation or dissolution of a Member
(or in any other way than by transfer) may, upon such evidence
being produced as may from time to time be required by the
Directors and subject as hereinafter provided, elect either to
be registered himself as holder of the share or to make such
transfer of the share to such other person nominated by him as
the deceased or bankrupt person could have made and to have
such person registered as the transferee thereof, but the
Directors shall, in either case, have the same right to
decline or suspend registration as they would have had in the
case of a transfer of the share by that Member before his
death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be
registered himself as holder he shall deliver or send to the
Company a notice in writing signed by him stating that he so
elects.
44. A person becoming entitled to a share by reason of the death or
bankruptcy or liquidation or dissolution of the holder (or in any other
case than by transfer) shall be entitled to the same dividends and
other advantages to which he would be entitled if he were the
registered holder of the share, except that he shall not, before being
registered as a Member in respect of the share, be entitled in respect
of it to exercise any right conferred by membership in relation to
meetings of the Company PROVIDED HOWEVER that the Directors may at any
time give notice requiring any such person to elect either to be
registered himself or to transfer the share and if the notice is not
complied with within ninety days the Directors may thereafter withhold
payment of all dividends, bonuses or other monies payable in respect of
the share until the requirements of the notice have been complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION,
CHANGE OF LOCATION OF REGISTERED OFFICE, AND
ALTERATION OF CAPITAL
45. (a) Subject to and in so far as permitted by the provisions of the
Statute, the Company may from time to time by ordinary
resolution alter or amend its Memorandum of
15
Association otherwise than with respect to its name and
objects 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 or into shares without
nominal or par value; or
(iv) cancel any shares which at the date of the passing of
the resolution have not been taken or agreed to be
taken by any person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens,
transfer, transmission, forfeiture and otherwise as the shares
in the original share capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution change its name or alter its objects.
(d) Without prejudice to Article 23 hereof and subject to the
provisions of the Statute, the Company may by Special
Resolution reduce its share capital and any capital redemption
reserve fund.
(e) Subject to the provisions of the Statute, the Company may by
resolution of the Directors change the location of its
registered office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
46. For the purpose of determining Members entitled to notice of or to vote
at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any dividend, or in order to make a
determination of Members for any other proper purpose, the Directors of
the Company may provide that the register of Members shall be closed
for transfers for a stated period but not to exceed in any case forty
days. If the register of Members shall be so closed for the purpose of
determining Members entitled to notice of or to vote at a meeting of
Members such register shall be so closed for at least ten days
immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the register of
Members.
47. In lieu of or apart from closing the register of Members, the Directors
may fix in advance a date as the record date for any such determination
of Members entitled to notice of or to
16
vote at a meeting of the Members and for the purpose of determining the
Members entitled to receive payment of any dividend the Directors may,
at or within 90 days prior to the date of declaration of such dividend
fix a subsequent date as the record date for such determination.
48. If the register of Members is not so closed and no record date is fixed
for the determination of Members entitled to notice of or to vote at a
meeting of Members or Members entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date
on which the resolution of the Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such
determination of Members. When a determination of Members entitled to
vote at any meeting of Members has been made as provided in this
section, such determination shall apply to any adjournment thereof.
GENERAL MEETING
49. (a) Subject to paragraph (c) hereof, the Company shall within one
year of its incorporation and in each year of its existence
thereafter hold a general meeting as its annual general
meeting and shall specify the meeting as such in the notices
calling it. The annual general meeting shall be held at such
time and place as the Directors shall appoint and if no other
time and place is prescribed by them, it shall be held at the
registered office on the second Wednesday in December of each
year at ten o'clock in the morning.
(b) At these meetings the report of the Directors (if any) shall
be presented.
(c) If the Company is exempted as defined in the Statute it may
but shall not be obliged to hold an annual general meeting.
50. (a) The Directors may whenever they think fit, and they shall on
the requisition of Members of the Company holding at the date
of the deposit of the requisition not less than one-tenth of
such of the paid-up capital of the Company as at the date of
the deposit carries the right of voting at general meetings of
the Company, proceed to convene a general meeting of the
Company.
(b) The requisition must state the objects of the meeting and must
be signed by the requisitionists and deposited at the
registered office of the Company and may consist of several
documents in like form each signed by one or more
requisitionists.
(c) If the Directors do not within twenty-one days from the date
of the deposit of the requisition duly proceed to convene a
general meeting, the requisitionists, or any of them
representing more than one-half of the total voting rights of
all of them, may themselves convene a general meeting, but any
meeting so convened shall not be held after the expiration of
three months after the expiration of the said twenty-one days.
(d) A general meeting convened as aforesaid by requisitionists
shall be convened in the
17
same manner as nearly as possible as that in which general
meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
51. At least five days' notice shall be given of an annual general meeting
or any other general meeting. Every notice shall be exclusive of the
day on which it is given or deemed to be given and of the day for which
it is given and shall specify the place, the day and the hour of the
meeting and the general nature of the business and shall be given in
manner hereinafter mentioned or in such other manner if any as may be
prescribed by the Company PROVIDED that a general meeting of the
Company shall, whether or not the notice specified in this regulation
has been given and whether or not the provisions of Article 50 have
been complied with, be deemed to have been duly convened if it is so
agreed:
(a) in the case of a general meeting called as an annual general
meeting by all the Members entitled to attend and vote thereat
or their proxies; and
(b) in the case of any other general meeting by a majority in
number of the Members having a right to attend and vote at the
meeting, being a majority together holding not less than
seventy-five per cent in nominal value or in the case of
shares without nominal or par value seventy-five per cent of
the shares in issue, or their proxies.
52. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive
notice shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
53. No business shall be transacted at any general meeting unless a quorum
of Members is present at the time when the meeting proceeds to
business; two Members present in person or by proxy shall be a quorum
provided always that if the Company has one Member of record the quorum
shall be that one Member present in person or by proxy.
54. A resolution (including a Special Resolution) in writing (in one or
more counterparts) signed by all Members for the time being entitled to
receive notice of and to attend and vote at general meetings (or being
corporations by their duly authorised representatives) shall be as
valid and effective as if the same had been passed at a general meeting
of the Company duly convened and held.
55. If within half an hour from the time appointed for the meeting a quorum
is not present, the meeting, if convened upon the requisition of
Members, shall be dissolved and in any other case it shall stand
adjourned to the same day in the next week at the same time and place
or to such other time or such other place as the Directors may
determine and if at the adjourned meeting a quorum is not present
within half an hour from the time appointed for the meeting the Members
present shall be a quorum.
18
56. The Chairman, if any, of the Board of Directors shall preside as
Chairman at every general meeting of the Company, or if there is no
such Chairman, or if he shall not be present within fifteen minutes
after the time appointed for the holding of the meeting, or is
unwilling to act, the Directors present shall elect one of their number
to be Chairman of the meeting.
57. If at any general meeting no Director is willing to act as Chairman or
if no Director is present within fifteen minutes after the time
appointed for holding the meeting, the Members present shall choose one
of their number to be Chairman of the meeting.
58. The Chairman may, with the consent of any general meeting duly
constituted hereunder, and shall if so directed by the meeting, adjourn
the meeting from time to time and from place to place, but no business
shall be transacted at any adjourned meeting other than the business
left unfinished at the meeting from which the adjournment took place.
When a general meeting is adjourned for thirty days or more, notice of
the adjourned meeting shall be given as in the case of an original
meeting; save as aforesaid it shall not be necessary to give any notice
of an adjournment or of the business to be transacted at an adjourned
general meeting.
59. At any general meeting a resolution put to the vote of the meeting
shall be decided on a poll.
60. Unless a poll be so demanded a declaration by the Chairman that a
resolution has on a show of hands been carried, or carried unanimously,
or by a particular majority, or lost, and an entry to that effect in
the Company's Minute Book containing the Minutes of the proceedings of
the meeting shall be conclusive evidence of that fact without proof of
the number or proportion of the votes recorded in favour of or against
such resolution.
61. The demand for a poll may be withdrawn.
62. Except as provided in Article 64, if a poll is duly demanded it shall
be taken in such manner as the Chairman directs and the result of the
poll shall be deemed to be the resolution of the general meeting at
which the poll was demanded.
63. In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman of the general meeting at which the show of hands
takes place or at which the poll is demanded, shall be entitled to a
second or casting vote.
64. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other
question shall be taken at such time as the Chairman of the general
meeting directs and any business other than that upon which a poll has
been demanded or is contingent thereon may be proceeded with pending
the taking of the poll.
19
VOTES OF MEMBERS
65. Subject to any rights or restrictions for the time being attached to
any class or classes of shares, on a show of hands every Member of
record present in person or by proxy at a general meeting shall have
one vote and on a poll every Member of record present in person or by
proxy shall have one vote for each share registered in his name in the
register of Members.
66. In the case of joint holders of record the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in
the register of Members.
67. A Member of unsound mind, or in respect of whom an order has been made
by any court, having jurisdiction in lunacy, may vote, whether on a
show of hands or on a poll, by his committee, receiver, curator bonis,
or other person in the nature of a committee, receiver or curator bonis
appointed by that court, and any such committee, receiver, curator
bonis or other persons may vote by proxy.
68. No Member shall be entitled to vote at any general meeting unless he is
registered as a shareholder of the Company on the record date for such
meeting nor unless all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
69. No objection shall be raised to the qualification of any voter except
at the general meeting or adjourned general meeting at which the vote
objected to is given or tendered and every vote not disallowed at such
general meeting shall be valid for all purposes. Any such objection
made in due time shall be referred to the Chairman of the general
meeting whose decision shall be final and conclusive.
70. On a poll votes may be given either personally or by proxy.
PROXIES
71. The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or of his attorney duly
authorised in writing, or, if the appointor is a corporation under the
hand of an officer or attorney duly authorised in that behalf. A proxy
need not be a Member of the Company.
72. The instrument appointing a proxy shall be deposited at the registered
office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for
holding the meeting, or adjourned meeting provided that the Chairman of
the Meeting may at his discretion direct that an instrument of proxy
shall be deemed to have been duly deposited upon receipt of telex,
cable or telecopy confirmation from the appointor that the instrument
of proxy duly signed is in the course of transmission to the Company.
73. The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment
thereof or generally until
20
revoked. An instrument appointing a proxy shall be deemed to include
the power to demand or join or concur in demanding a poll.
74. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which
the proxy was executed, or the transfer of the share in respect of
which the proxy is given provided that no intimation in writing of such
death, insanity, revocation or transfer as aforesaid shall have been
received by the Company at the registered office before the
commencement of the general meeting, or adjourned meeting at which it
is sought to use the proxy.
75. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision by
resolution of its Directors or other governing body authorise such
person as it thinks fit to act as its representative at any meeting of
the Company or of any class of Members of the Company, and the person
so authorised shall be entitled to exercise the same powers on behalf
of the corporation which he represents as the corporation could
exercise if it were an individual Member of record of the Company.
76. Shares of its own capital belonging to the Company or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of
outstanding shares at any given time.
DIRECTORS
77. There shall be a Board of Directors consisting of not less than one or
more than ten persons (exclusive of alternate Directors) PROVIDED
HOWEVER that the Company may from time to time by ordinary resolution
increase or reduce the limits in the number of Directors. The first
Directors of the Company shall be determined in writing by, or
appointed by a resolution of, the subscribers of the Memorandum of
Association or a majority of them.
78. The remuneration to be paid to the Directors shall be such remuneration
as the Directors shall determine. Such remuneration shall be deemed to
accrue from day to day. The Directors shall also be entitled to be paid
their travelling, hotel and other expenses properly incurred by them in
going to, attending and returning from meetings of the Directors, or
any committee of the Directors, or general meetings of the Company, or
otherwise in connection with the business of the Company, or to receive
a fixed allowance in respect thereof as may be determined by the
Directors from time to time, or a combination partly of one such method
and partly the other.
79. The Directors may by resolution award special remuneration to any
Director of the Company undertaking any special work or services for,
or undertaking any special mission on behalf of, the Company other than
his ordinary routine work as a Director. Any fees paid to a Director
who is also counsel or solicitor to the Company, or otherwise serves it
in a professional capacity shall be in addition to his remuneration as
a Director.
80. A Director or alternate Director may hold any other office or place of
profit under the
21
Company (other than the office of Auditor) in conjunction with his
office of Director for such period and on such terms as to remuneration
and otherwise as the Directors may determine.
81. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be
entitled to remuneration for professional services as if he were not a
Director or alternate Director.
82. A shareholding qualification for Directors may be fixed by the Company
in general meeting, but unless and until so fixed no qualification
shall be required.
83. A Director or alternate Director of the Company may be or become a
director or other officer of or otherwise interested in any company
promoted by the Company or in which the Company may be interested as
shareholder or otherwise and no such Director or alternate Director
shall be accountable to the Company for any remuneration or other
benefits received by him as a director or officer of, or from his
interest in, such other company.
84. No person shall be disqualified from the office of Director or
alternate Director or prevented by such office from contracting with
the Company, either as vendor, purchaser or otherwise, nor shall any
such contract or any contract or transaction entered into by or on
behalf of the Company in which any Director or alternate Director shall
be in any way interested be or be liable to be avoided, nor shall any
Director or alternate Director so contracting or being so interested be
liable to account to the Company for any profit realised by any such
contract or transaction by reason of such Director holding office or of
the fiduciary relation thereby established. A Director (or his
alternate Director in his absence) shall be at liberty to vote in
respect of any contract or transaction in which he is so interested as
aforesaid PROVIDED HOWEVER that the nature of the interest of any
Director or alternate Director in any such contract or transaction
shall be disclosed by him or the alternate Director appointed by him at
or prior to its consideration and any vote thereon.
85. A general notice that a Director or alternate Director is a shareholder
of any specified firm or company and is to be regarded as interested in
any transaction with such firm or company shall be sufficient
disclosure under Article 84 and after such general notice it shall not
be necessary to give special notice relating to any particular
transaction.
ALTERNATE DIRECTORS
86. Subject to the exception contained in Article 94, a Director who
expects to be unable to attend Directors' Meetings because of absence,
illness or otherwise may appoint any person to be an alternate Director
to act in his stead and such appointee whilst he holds office as an
alternate Director shall, in the event of absence therefrom of his
appointor, be entitled to attend meetings of the Directors and to vote
thereat and to do, in the place and stead of his appointor, any other
act or thing which his appointor is permitted or required to do by
virtue of his being a Director as if the alternate Director were the
appointor, other than appointment of an alternate to himself, and he
shall ipso facto vacate office if and when his appointor ceases to be a
Director or removes the appointee from office. Any appointment
22
or removal under this Article shall be effected by notice in writing
under the hand of the Director making the same.
POWERS AND DUTIES OF DIRECTORS
87. The business of the Company shall be managed by the Directors (or a
sole Director if only one is appointed) who may pay all expenses
incurred in promoting, registering and setting up the Company, and may
exercise all such powers of the Company as are not, from time to time
by the Statute, or by these Articles, or such regulations, being not
inconsistent with the aforesaid, as may be prescribed by the Company in
general meeting required to be exercised by the Company in general
meeting PROVIDED HOWEVER that no regulations made by the Company in
general meeting shall invalidate any prior act of the Directors which
would have been valid if that regulation had not been made.
88. The Directors may from time to time and at any time by powers of
attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney
or attorneys of the Company for such purpose and with such powers,
authorities and discretions (not exceeding those vested in or
exercisable by the Directors under these Articles) and for such period
and subject to such conditions as they may think fit, and any such
powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorneys as the Directors
may think fit and may also authorise any such attorney to delegate all
or any of the powers, authorities and discretions vested in him.
89. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the
case may be in such manner as the Directors shall from time to time by
resolution determine.
90. The Directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented
thereat by an alternate or by proxy) present at each meeting
of the Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the
Company and of the Directors and of committees of Directors.
91. The Directors on behalf of the Company may pay a gratuity or pension or
allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or
dependants and may make contributions to any fund and pay premiums for
the purchase or provision of any such gratuity, pension or allowance.
92. The Directors may exercise all the powers of the Company to borrow
money and to
23
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.
MANAGEMENT
93. (a) The Directors may from time to time provide for the management
of the affairs of the Company in such manner as they shall
think fit and the provisions contained in the three next
following paragraphs shall be without prejudice to the general
powers conferred by this paragraph.
(b) The Directors from time to time and at any time may establish
any committees, local boards or agencies for managing any of
the affairs of the Company and may appoint any persons to be
members of such committees or local boards or any managers or
agents and may fix their remuneration.
(c) The Directors from time to time and at any time may delegate
to any such committee, local board, manager or agent any of
the powers, authorities and discretions for the time being
vested in the Directors and may authorise the members for the
time being of any such local board, or any of them to fill up
any vacancies therein and to act notwithstanding vacancies and
any such appointment or delegation may be made on such terms
and subject to such conditions as the Directors may think fit
and the Directors may at any time remove any person so
appointed and may annul or vary any such delegation, but no
person dealing in good faith and without notice of any such
annulment or variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by the
Directors to subdelegate all or any of the powers,
authorities, and discretions for the time being vested in
them.
MANAGING DIRECTORS
94. The Directors may, from time to time, appoint one or more of their body
(but not an alternate Director) to the office of Managing Director for
such term and at such remuneration (whether by way of salary, or
commission, or participation in profits, or partly in one way and
partly in another) as they may think fit but his appointment shall be
subject to determination ipso facto if he ceases from any cause to be a
Director and no alternate Director appointed by him can act in his
stead as a Director or Managing Director.
95. The Directors may entrust to and confer upon a Managing Director any of
the powers exercisable by them upon such terms and conditions and with
such restrictions as they may think fit and either collaterally with or
to the exclusion of their own powers and may from time to time revoke,
withdraw, alter or vary all or any of such powers.
24
PROCEEDINGS OF DIRECTORS
96. Except as otherwise provided by these Articles, the Directors shall
meet together for the despatch of business, convening, adjourning and
otherwise regulating their meetings as they think fit. Questions
arising at any meeting shall be decided by a majority of votes of the
Directors and alternate Directors present at a meeting at which there
is a quorum, the vote of an alternate Director not being counted if his
appointor be present at such meeting. In case of an equality of votes,
the Chairman shall have a second or casting vote.
97. A Director or alternate Director may, and the Secretary on the
requisition of a Director or alternate Director shall, at any time
summon a meeting of the Directors by at least two days' notice in
writing to every Director and alternate Director which notice shall set
forth the general nature of the business to be considered unless notice
is waived by all the Directors (or their alternates) either at, before
or after the meeting is held and PROVIDED FURTHER if notice is given in
person, by cable, telex or telecopy the same shall be deemed to have
been given on the day it is delivered to the Directors or transmitting
organisation as the case may be. The provisions of Article 52 shall
apply mutatis mutandis with respect to notices of meetings of
Directors.
98. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors and unless so fixed shall be
two, a Director and his appointed alternate Director being considered
only one person for this purpose, PROVIDED ALWAYS that if there shall
at any time be only a sole Director the quorum shall be one. For the
purposes of this Article an alternate Director or proxy appointed by a
Director shall be counted in a quorum at a meeting at which the
Director appointing him is not present.
99. The continuing Directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number
fixed by or pursuant to these Articles as the necessary quorum of
Directors the continuing Directors or Director may act for the purpose
of increasing the number of Directors to that number, or of summoning a
general meeting of the Company, but for no other purpose.
100. The Directors may elect a Chairman of their Board and determine the
period for which he is to hold office; but if no such Chairman is
elected, or if at any meeting the Chairman is not present within five
minutes after the time appointed for holding the same, the Directors
present may choose one of their number to be Chairman of the meeting.
101. The Directors may delegate any of their powers to committees consisting
of such member or members of the Board of Directors (including
Alternate Directors in the absence of their appointors) as they think
fit; any committee so formed shall in the exercise of the powers so
delegated conform to any regulations that may be imposed on it by the
Directors.
102. A committee may meet and adjourn as it thinks proper. Questions arising
at any meeting shall be determined by a majority of votes of the
members present, and in the case of an equality of votes the Chairman
shall have a second or casting vote.
103. All acts done by any meeting of the Directors or of a committee of
Directors (including any
25
person acting as an alternate Director) shall, notwithstanding that it
be afterwards discovered that there was some defect in the appointment
of any Director or alternate Director, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and qualified to be a Director or alternate Director as the
case may be.
104. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. A resolution in writing (in one or
more counterparts), signed by all the Directors for the time being or
all the members of a committee of Directors (an alternate Director
being entitled to sign such resolution on behalf of his appointor)
shall be as valid and effectual as if it had been passed at a meeting
of the Directors or committee as the case may be duly convened and
held.
105. (a) A Director may be represented at any meetings of the Board of
Directors by a proxy appointed by him in which event the
presence or vote of the proxy shall for all purposes be deemed
to be that of the Director.
(b) The provisions of Articles 71-74 shall mutatis mutandis apply
to the appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
106. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns
the office of Director;
(b) if he absents himself (without being represented by proxy or
an alternate Director appointed by him) from three consecutive
meetings of the Board of Directors without special leave of
absence from the Directors, and they pass a resolution that he
has by reason of such absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or
composition with his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
107. The Company may by ordinary resolution appoint any person to be a
Director and may in like manner remove any Director and may in like
manner appoint another person in his stead.
108. The Directors shall have power at any time and from time to time to
appoint any person to
26
be a Director, either to fill a casual vacancy or as an addition to the
existing Directors but so that the total amount of Directors (exclusive
of alternate Directors) shall not at any time exceed the number fixed
in accordance with these Articles.
PRESUMPTION OF ASSENT
109. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be
presumed to have assented to the action taken unless his dissent shall
be entered in the Minutes of the meeting or unless he shall file his
written dissent from such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to such person immediately
after the adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favour of such action.
SEAL
110. (a) The Company may, if the Directors so determine, have a Seal
which shall, subject to paragraph (c) hereof, only be used by
the authority of the Directors or of a committee of the
Directors authorised by the Directors in that behalf and every
instrument to which the Seal has been affixed shall be signed
by one person who shall be either a Director or the Secretary
or Secretary-Treasurer or some person appointed by the
Directors for the purpose.
(b) The Company may have for use in any place or places outside
the Cayman Islands a duplicate Seal or Seals each of which
shall be a facsimile of the Common Seal of the Company and, if
the Directors so determine, with the addition on its face of
the name of every place where it is to be used.
(c) A Director, Secretary or other officer or representative or
attorney may without further authority of the Directors affix
the Seal of the Company over his signature alone to any
document of the Company required to be authenticated by him
under Seal or to be filed with the Registrar of Companies in
the Cayman Islands or elsewhere wheresoever.
OFFICERS
111. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such
other officers as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions
as to disqualification and removal as the Directors from time to time
prescribe.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
112. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of
the Company outstanding and authorise
27
payment of the same out of the funds of the Company lawfully available
therefor.
113. The Directors may, before declaring any dividends or distributions, set
aside such sums as they think proper as a reserve or reserves which
shall at the discretion of the Directors, be applicable for any purpose
of the Company and pending such application may, at the like
discretion, be employed in the business of the Company.
114. No dividend or distribution shall be payable except out of the profits
of the Company, realised or unrealised, or out of the share premium
account or as otherwise permitted by the Statute.
115. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividends or distributions, if dividends or
distributions are to be declared on a class of shares they shall be
declared and paid according to the amounts paid or credited as paid on
the shares of such class outstanding on the record date for such
dividend or distribution as determined in accordance with these
Articles but no amount paid or credited as paid on a share in advance
of calls shall be treated for the purpose of this Article as paid on
the share.
116. The Directors may deduct from any dividend or distribution payable to
any Member all sums of money (if any) presently payable by him to the
Company on account of calls or otherwise.
117. The Directors may declare that any dividend or distribution be paid
wholly or partly by the distribution of specific assets and in
particular of paid up shares, debentures, or debenture stock of any
other company or in any one or more of such ways and where any
difficulty arises in regard to such distribution, the Directors may
settle the same as they think expedient and in particular may issue
fractional certificates and fix the value for distribution of such
specific assets or any part thereof and may determine that cash
payments shall be made to any Members upon the footing of the value so
fixed in order to adjust the rights of all Members and may vest any
such specific assets in trustees as may seem expedient to the
Directors.
118. Any dividend, distribution, interest or other monies payable in cash in
respect of shares may be paid by cheque or warrant sent through the
post directed to the registered address of the holder or, in the case
of joint holders, to the holder who is first named on the register of
Members or to such person and to such address as such holder or joint
holders may in writing direct. Every such cheque or warrant shall be
made payable to the order of the person to whom it is sent. Any one of
two or more joint holders may give effectual receipts for any
dividends, bonuses, or other monies payable in respect of the share
held by them as joint holders.
119. No dividend or distribution shall bear interest against the Company.
CAPITALISATION
120. The Company may upon the recommendation of the Directors by ordinary
resolution
28
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 for allotment and distribution
credited as fully paid up to and amongst them in the proportion
aforesaid. In such event the Directors shall do all acts and things
required to give effect to such capitalisation, with full power to the
Directors to make such provisions as they think fit for the case of
shares becoming distributable in fractions (including provisions
whereby the benefit of fractional entitlements accrue to the Company
rather than to the Members concerned). The Directors may authorise any
person to enter on behalf of all of the Members interested into an
agreement with the Company providing for such capitalisation and
matters incidental thereto and any agreement made under such authority
shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
121. The Directors shall cause proper books of account to be kept with
respect to:
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt or expenditure takes
place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such
books of account as are necessary to give a true and fair view of the
state of the Company's affairs and to explain its transactions.
122. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall
be open to the inspection of Members not being Directors and no Member
(not being a Director) shall have any right of inspecting any account
or book or document of the Company except as conferred by Statute or
authorised by the Directors or by the Company in general meeting.
123. The Directors may from time to time cause to be prepared and to be laid
before the Company in general meeting profit and loss accounts, balance
sheets, group accounts (if any) and such other reports and accounts as
may be required by law.
AUDIT
124. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office until the next annual
general meeting and may fix his or their remuneration.
29
125. The Directors may before the first annual general meeting appoint an
Auditor or Auditors of the Company who shall hold office until the
first annual general meeting unless previously removed by an ordinary
resolution of the Members in general meeting in which case the Members
at that meeting may appoint Auditors. The Directors may fill any casual
vacancy in the office of Auditor but while any such vacancy continues
the surviving or continuing Auditor or Auditors, if any, may act. The
remuneration of any Auditor appointed by the Directors under this
Article may be fixed by the Directors.
126. Every Auditor of the Company shall have a right of access at all times
to the books and accounts and vouchers of the Company and shall be
entitled to require from the Directors and Officers of the Company such
information and explanation as may be necessary for the performance of
the duties of the auditors.
127. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon
request of the Directors or any general meeting of the Members, make a
report on the accounts of the Company in general meeting during their
tenure of office.
NOTICES
128. Notices shall be in writing and may be given by the Company to any
Member either personally or by sending it by post, cable, telex or
telecopy to him or to his address as shown in the register of Members,
such notice, if mailed, to be forwarded airmail if the address be
outside the Cayman Islands.
129. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying and
posting a letter containing the notice, and to have been
effected at the expiration of sixty hours after the letter
containing the same is posted as aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service
of the notice shall be deemed to be effected by properly
addressing, and sending such notice through a transmitting
organisation and to have been effected on the day the same is
sent as aforesaid.
130. A notice may be given by the Company to the joint holders of record of
a share by giving the notice to the joint holder first named on the
register of Members in respect of the share.
131. A notice may be given by the Company to the person or persons which the
Company has been advised are entitled to a share or shares in
consequence of the death or bankruptcy of a Member by sending it
through the post as aforesaid in a pre-paid letter addressed to them by
name, or by the title of representatives of the deceased, or trustee of
the bankrupt, or by any like description at the address supplied for
that purpose by the persons claiming to be so entitled, or at the
option of the Company by giving the notice in any manner in which the
30
same might have been given if the death or bankruptcy had not occurred.
132. Notice of every general meeting shall be given in any manner
hereinbefore authorised to:
(a) every person shown as a Member in the register of Members as
of the record date for such meeting except that in the case of
joint holders the notice shall be sufficient if given to the
joint holder first named in the register of Members.
(b) every person upon whom the ownership of a share devolves by
reason of his being a legal personal representative or a
trustee in bankruptcy of a Member of record where the Member
of record but for his death or bankruptcy would be entitled to
receive notice of the meeting; and
No other person shall be entitled to receive notices of general
meetings.
WINDING UP
133. Subject to the provisions of Articles 6 and 12, if the Company shall be
wound up the liquidator may, with the sanction of a Special Resolution
of the Company and any other sanction required by the Statute, divide
amongst the Members in specie or kind the whole or any part of the
assets of the Company (whether they shall consist of property of the
same kind or not) and may for such purpose set such value as he deems
fair upon any property to be divided as aforesaid and may determine how
such division shall be carried out as between the Members or different
classes of Members. The liquidator may with the like sanction, vest the
whole or any part of such assets in trustees upon such trusts for the
benefit of the contributories as the liquidator, with the like
sanction, shall think fit, but so that no Member shall be compelled to
accept any shares or other securities whereon there is any liability.
134. Subject to the provisions of Articles 6 and 12, if the Company shall be
wound up, and the assets available for distribution amongst the Members
as such shall be insufficient to repay the whole of the paid-up
capital, such assets shall be distributed so that, as nearly as may be,
the losses shall be borne by the Members in proportion to the capital
paid up, or which ought to have been paid up, at the commencement of
the winding up on the shares held by them respectively. And if in a
winding up the assets available for distribution amongst the Members
shall be more than sufficient to repay the whole of the capital paid up
at the commencement of the winding up, the excess shall be distributed
amongst the Members in proportion to the capital paid up at the
commencement of the winding up on the shares held by them respectively.
This Article is to be without prejudice to the rights of the holders of
shares issued upon special terms and conditions.
INDEMNITY
135. The Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the affairs of
the Company and their heirs, executors, administrators and personal
representatives respectively shall be indemnified out of the
31
assets of the Company from and against all actions, proceedings, costs,
charges, losses, damages and expenses which they or any of them shall
or may incur or sustain by reason of any act done or omitted in or
about the execution of their duty in their respective offices or
trusts, except such (if any) as they shall incur or sustain by or
through their own wilful neglect or default respectively and no such
Director, officer or trustee shall be answerable for the acts,
receipts, neglects or defaults of any other Director, officer or
trustee or for joining in any receipt for the sake of conformity or for
the solvency or honesty of any banker or other persons with whom any
monies or effects belonging to the Company may be lodged or deposited
for safe custody or for any insufficiency of any security upon which
any monies of the Company may be invested or for any other loss or
damage due to any such cause as aforesaid or which may happen in or
about the execution of his office or trust unless the same shall happen
through the wilful neglect or default of such Director, Officer or
trustee.
FINANCIAL YEAR
136. Unless the Directors otherwise prescribe, the financial year of the
Company shall end on 31st December in each year and, following the year
of incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
137. Subject to the Statute, the Company may at any time and from time to
time by Special Resolution alter or amend these Articles in whole or in
part.
TRANSFER BY WAY OF CONTINUATION
138. If the Company is exempted as defined in the Statute, it shall, subject
to the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands
and to be deregistered in the Cayman Islands.
32