THE COMPANIES ORDINANCE (Chapter 32)
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Company Limited by Shares
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ARTICLES OF ASSOCIATION
OF
Name changed to MAGICWORKS ENTERTAINMENT
ASIA LIMITED w.e.f. April 25, 1997
PEDRO TRADING LIMITED
PRELIMINARY
1. The regulations in Table A in the First Schedule to the Ordinance shall
not apply to the Company.
INTERPRETATION
2. (a) In these Articles, save where the context otherwise requires:
"the Company" means the above named Company;
"the Ordinance" means the Companies Ordinance (Chapter 32 of the Laws of Hong
Kong), and includes every other ordinance incorporated therewith or substituted
therefor; and in the case of any such substitution the references in these
Articles to the provisions of the Ordinance shall be read as references to the
provisions substituted therefor in the new ordinance;
"the Board" and "the Directors" means the directors for the time being of the
Company or the directors present at a duly convened meeting of directors at
which a quorum is present;
"Dividend" includes bonuses, distributions in specie and in kind, capital
distributions and capitalisation issues; "month" means calendar month;
"the Office" means the registered office of the Company for the time being;
"paid up;" includes credited as paid up;
"the Register" means the register of members of the Company kept pursuant to the
Ordinance and includes any branch register kept pursuant to the Ordinance;
"the Secretary" means the secretary for the time being of the Company;
"the Seal" means the common seal of the Company or any official seal that the
Company may have as permitted by the Ordinance; "these Articles" means these
Articles of Association in their present form or as altered from time to time;
"in writing and "written" includes cable, telex, facsimile messages and any mode
of reproducing words in a legible and non-transitory form.
(b) In these Articles, if not inconsistent with the subject or context,
words importing the singular number only shall include the plural
number and vice versa, and words importing any gender shall include all
genders and vice versa.
(c) Subject as aforesaid, any words defined in the Ordinance or any
statutory modification thereof in force at the date at which these
Articles become binding on the Company shall, if not inconsistent with
the subject or context, bear the same meaning in these Articles.
(d) The headings are inserted for convenience only and shall not affect
the construction of these Articles.
PRIVATE COMPANY
3. The Company is a private company, and accordingly:-
(a) any invitation to the public to subscribe for any shares or
debentures of the Company is prohibited;
(b) the number of the members of the Company (not including persons who
are in the employment of the Company, and 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) shall be limited to fifty
PROVIDED that where two or more persons hold one or more shares in the
Company jointly they shall, for the purposes of this Article, be
treated as a single member;
(c) the right to transfer the shares of the Company shall be restricted
in manner hereinafter prescribed; and
(d) the Company shall not have power to issue share warrants to bearer.
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THE OFFICE
4. The Office shall be at such place in Hong Kong as the Directors or
Secretary shall from time to time appoint.
SHARES
5 (a) Subject to the provisions of Section 57B of the Ordinance, and save
as provided by contract or these Articles to the contrary, all unissued
shares shall be at the disposal of the Directors who may allot, grant
options over, or otherwise deal with or dispose of the same to such
persons, at such times, for such consideration and generally upon such
terms and conditions as they think proper, but so that no shares of any
class shall be issued at a discount except in accordance with Section
50 of the Ordinance.
(b) The Company may give such financial assistance for purposes of
acquiring shares in the Company as is not prohibited by the Ordinance.
(c) For purposes of Article 8(b) the Directors are authorised to make
statutory declarations or take such other steps as may be required by
the Ordinance in relation to the giving of financial assistance to
acquire shares in the Company.
6. The Company 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.
7. If by the conditions of allotment of any shares the whole or part of
the amount or issue price thereof shall be payable by instalments,
every such instalment shall, when due, be paid to the Company by the
person who for the time being is the registered holder of the shares,
or his legal personal representative.
8. (a.) Subject to sections 49 to 49S of the Ordinance, the
Company may issue shares which are to be redeemed or are
liable to be redeemed at the option of the Company or the
shareholder. The redemption of shares may be effected upon
such terms and in such manner as the Company before or upon
issue of the shares shall by ordinary resolution determine.
(b.) Subject to sections 49 to 49S of the Ordinance, the Company
may purchase its own shares (including redeemable shares) and
without prejudice to the generality of the foregoing the
Company may purchase its own shares (including any redeemable
shares) in order to:
(1) settle or compromise a debt or claim;
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(2) eliminate a fractional share or fractional entitlement;
(3) fulfil an agreement in which the Company has an option or is
obliged to purchase shares under an employee share scheme which had
previously been approved by the Company in general meeting;
(4) comply with an order of court under section 8(4),47G(6), or 168A(2)
of the Ordinance.
(c.) Subject to sections 49I to 49O of the Ordinance, the Company may
make a payment in respect of the redemption or purchase under section
49A or (as the case may be) section 49B of its own shares otherwise
than out of its distributable profits or the proceeds of a fresh issue
of shares.
(d.) For purposes of Article 8(c), the Directors are authorised to make
statutory declarations or take such other steps as may be required by
the Ordinance in relation to the redemption or purchase by the Company
of its own shares out of capital.
9. Subject to the provisions of these Articles, the Company shall not,
except as required by law, be bound by or required in any way to
recognise any contingent, future, partial or equitable interest in any
share or in any fractional part of a share, or any other right in
respect of any share, or any other claim to or in respect of any such
share on the part of any person (even when having notice thereof)
except an absolute right to the entirely thereof in the registered
holder.
10. The Company may in connection with the issue of any shares exercise all
powers of paying interest out of capital and of paying commission and
brokerage conferred or permitted by the Ordinance.
11. No person shall become a member until his name shall have been entered
into the Register.
JOINT HOLDERS OF SHARES
12. 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 following provisions:
(a) the Company shall not be bound to register more than
three persons as the holders of any shares except in
the case of the legal personal representative of a
deceased member;
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(b) the joint holders of any shares shall be liable severally as
well as jointly in respect of all payments which ought to be
made in respect of such shares;
(c) on the death of any one of such joint holders the survivor or
survivors shall be the only person or persons recognized by
the Company as having any title to such shares, but the
Directors may require such evidence of death as they may deem
fit;
(d) any one of such joint holders may give effectual receipts for
any dividend, return of capital or other payment in the share;
and
(e) the Company shall be at liberty to treat the person whose name
stands first in the Register as one of the joint holders of
any shares as solely entitled to delivery of the certificate
relating to such shares, or to receive notices from the
Company, and to attend and vote at general meetings of the
Company, and any notice given to such person shall be deemed
notice to all the joint holders; but anyone of such joint
holders may be appointed the proxy of the persons entitled to
vote on behalf of such joint holders, and as such proxy to
attend and vote at general meetings of the Company, and if
more than one of such joint holders be present at any meeting
personally or by proxy that one so present whose name stands
first in the Register in respect of such shares shall alone be
entitled to vote in respect thereof.
SHARE CERTIFICATES
13. Every member shall, without payment, be entitled to receive within two
months after allotment or lodgment of an instrument of transfer duly
stamped, or within such other period as the conditions of issue may
provide, a certificate for all his shares of any particular class, or
several certificates, each for one or more of his shares, upon payment
of such fee, not exceeding two dollars for every certificate after the
first, as the Directors shall from time to time determine, provided
that in the event of a member transferring part of the shares
represented by a certificate in his name a new certificate in respect
of the balance thereof shall be issued in his name without payment and,
in the case of joint holders, the Company shall not be bound to issue
more than one certificate for all the shares of any particular class
registered in their joint names.
14. Every share certificate shall be issued under the Seal and shall
specify the number and class of shares, and, if required, the
distinctive numbers thereof comprised therein, the amount paid up
thereon and, if appropriate, whether such shares carry no voting
rights. No certificate shall be issued in respect of more than one
class of shares. If there shall be more than one class of shares then
each certificate of every class shall state thereon that the share
capital is divided into different classes and the nominal value of the
voting rights attaching to each class.
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15. If any share certificate shall be worn out, defaced, destroyed or lost,
it may be renewed on such evidence being produced as the Directors
shall require, and in case of wearing out or defacement, on delivery up
of the old certificate, and in case of destruction or loss, on the
execution of such indemnity (if any), as the Directors may from time to
time require. In case of destruction or loss, the person to whom such
renewed certificate is given shall also bear and pay to the Company all
expenses incidental to the investigation by the Company of the evidence
of such destruction or loss and of such indemnity.
CALLS ON SHARES
16. (a) 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 value of the shares or by
way of premium) but subject always to the terms of issue of
such shares, and any such call may be made payable by
instalments.
(b) Each member shall, subject to receiving at least fourteen days'
notice specifying the time or times and place for payment, pay to
the Company the amount called on his shares and at the time or
times and place so specified. The nonreceipt of a notice of any
call by, or the accidental omission to give notice of a call to,
any of the members shall not invalidate the call.
17. A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed. A call
may be revoked, varied or postponed as the Directors may determine.
18. If any part of a sum called in respect of any shares or any instalment
of a call be not paid before, or on the day appointed for payment
thereof, the person from whom the sum is due shall be liable to pay
interest on the outstanding part thereof at such rate as the Directors
shall determine from the day appointed for the payment of such call or
instalment to the time of discharge thereof in full; but the Directors
may, if they shall think fit, waive the payment of such interest or any
part thereof.
19. If, by the terms of the issue of any shares or otherwise, any amount is
made payable upon allotment or 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 and payable on
the date on which by the terms of the issue the same becomes payable;
and all the provisions thereof with respect to the payment of calls and
interest thereon, 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 in the case of non-payment thereof.
20. The Directors may, if they shall 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;
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and upon all or any of the moneys so paid in advance the Directors may
(until the same would, but for such payment in advance, become
presently payable) pay interest at such rate as may be agreed upon
between the member paying the moneys in advance and the Directors. The
Directors may also at any time repay the amount so advanced upon giving
to such member one month's notice in writing.
21. On the trial or hearing of any action for the recovery of any money due
for any call, it shall be sufficient to prove that the name of the
member sued is entered in the Register as the holder, or one of the
holders, of the shares in respect of which such debt accrued; that the
resolution making the call is duly recorded in the Minute Book; and
that notice of such call was duly given to the member sued in pursuance
of these Articles; and it shall not be necessary to prove the
appointment of the Directors who made such call, nor any other matters
whatsoever, but the proof of the matters aforesaid shall be conclusive
evidence of the debt.
22. No member shall, unless the Directors otherwise determine, be entitled
to receive any dividend, or, subject to the Ordinance, to receive
notice of or to be present or vote at any general meeting, either
personally or (save as proxy for another member) by proxy, or to
exercise any privileges as a member, or be reckoned in a quorum, until
he shall have paid all calls or other sums for the time being due and
payable on every share held by him, whether alone or jointly with any
other person, together with interest and expenses (if any).
FORFEITURE
23. If any member fails to pay in full 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 him to pay so much of
the call or instalment as is unpaid together with interest accrued and
any expenses incurred by reason of such non-payment.
24. The notice shall name a further day (not being less than fourteen days
from the date of the notice) on or before which such call or instalment
or part thereof and all interest accrued and expenses incurred by
reason of such non-payment are to be paid, and it shall also name the
place where payment is to be made, such place being either the Office,
or some other place at which calls of the Company are usually made
payable. The notice shall also state that, in the event of non-payment
at 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 be
forfeited.
25. 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 had been
made, be forfeited by a resolution of the
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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. The Directors may accept the
surrender of any shares liable to be forfeited hereunder and in such
case references in these Articles to forfeiture shall include
surrender.
26. Any shares so forfeited shall be deemed for the purposes of this
Article to be the property of the Company, and may be sold, re-allotted
or otherwise disposed of either subject to or discharged from all calls
made or instalments due prior to the forfeiture, to any person, upon
such terms and in such manner and at such time or times as the
Directors think fit. 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 any other person becoming entitled thereto.
27. The Directors may, at any time before any shares so forfeited shall
have been sold, re-allotted or otherwise disposed of, annul the
forfeiture thereof upon such conditions as they think fit.
28. Any person whose shares have been forfeited shall thereupon cease to be
the holder of any such shares but shall notwithstanding be and remain
liable to pay to the Company all calls, instalments, interest and
expenses owing upon or in respect of such shares at the time of the
forfeiture together with interest thereon from the time of forfeiture
until payment at such rate as the Directors shall think fit and without
any deduction or allowance for the value of the shares at the time of
forfeiture, and the Directors may enforce the payment of such moneys or
any part thereof and may waive payment of such interest wholly or in
part.
29. When any shares have been forfeited an entry shall 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.
LIEN
30. The Company shall have a first and paramount lien on every share for
all moneys outstanding in respect of such share, whether presently
payable or not, and the Company shall also have a first and paramount
lien on every share standing registered in the name of a member,
whether singly or jointly with any other person or persons, for all the
debts and liabilities of such member or his estate to the Company,
whether the same shall have been incurred before or after notice to the
Company of any interest of any person other than such member, and
whether the same shall have fallen due for payment or not, and
notwithstanding that the same are joint debts or liabilities of such
member or his estate and any other person, whether a member or not. The
Directors may at any time either
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generally or in any particular case waive any lien that has arisen, or
declare any share to be wholly or in part exempt from the provisions of
this Article.
31. The Company may sell in such manner as the Directors think fit any
share on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists is presently payable, nor
until the expiration of fourteen days after a notice in writing stating
and demanding payment of the sum presently payable and giving notice of
intention to sell in default shall have been given to the holder for
the time being of the share or the person entitled thereto by reason of
his death, bankruptcy or winding up or otherwise by operation of law or
court order.
32. The net proceeds of such sale after payment of the costs of such sale
shall be applied in or towards payment or satisfaction of the debts or
liabilities in respect whereof the lien existed so far as the same are
presently payable and any residue shall (subject to a like lien for
debts or liabilities not presently payable as existed upon the shares
prior to the sale) be paid to the person entitled to the shares at the
time of the sale. For giving effect to any such sale the Directors may
authorise some person to transfer the shares so sold to the purchaser
thereof.
33. A statutory declaration in writing that the declarant is a Director or
the Secretary of the Company and that a share has been duly forfeited
or surrendered or sold to satisfy a lien of the Company on a date
stated in the declaration shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the
share. Such declaration and the receipt of the Company for the
consideration (if any) given for the share on the sale, re-allotment or
disposal thereof together with the share certificate delivered to a
purchaser or allottee thereof shall (subject to the execution of a
transfer if the same be required) constitute a good title to the share
and the person to whom the share is sold, re-allotted or disposed of
shall 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, surrender, sale,
reallotment ,or disposal of the share.
TRANSFER OF SHARES
34. The instrument of transfer of any shares in the Company shall be in
writing and shall be executed by or on behalf of the transferor and by
or on behalf of the transferee. The transferor shall remain the holder
of the shares concerned until the name of the transferee is entered in
the Register in respect thereof.
35. Every instrument of transfer shall be lodged at the Office for
registration accompanied by the certificate relating to the shares to
be transferred and such other evidence as the Directors may require in
relation thereto. All instruments of transfer which shall be registered
shall be retained by the Company but, save where fraud is suspected,
any
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instrument of transfer which the Directors may decline to register
shall, on demand, be returned to the person depositing the same.
36. There shall be paid to the Company in respect of the registration of a
transfer and of any Grant of Probate or Letters of Administration,
Certificate of Marriage or Death, Power of Attorney or other document
relating to or affecting the title to any share or the making of any
entry in the Register affecting the title to any share such fee (if
any) as the Directors may from time to time require or prescribe.
37. The registration of transfers may be suspended at such times and for
such periods as the Directors may from time to time determine and
either generally or in respect of any class of shares provided always
that such registration shall not be suspended for more than thirty days
in any year.
38. (a) The Directors may at any time in their absolute discretion and
without assigning any reason therefor, decline to register any
transfer of any share whether or not it is a fully paid share.
(b) The Directors may also decline to register any transfer unless:
(i) The instrument of transfer is in respect of only one class
of shares;
(ii) in the case of a transfer to joint holders, the number of
joint holders to whom the shares are to be transferred does
not exceed three; and
(iii)the shares concerned are free of any lien in favour of the
Company.
(c) 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 transferor and transferee notice of the
refusal.
TRANSMISSION OF SHARES
39. 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
recognized by the Company as having any title to his interest in the
shares; but nothing herein contained shall release the estate of a
deceased joint holder from any liability in respect of any share which
had been jointly held by him with other persons.
40. (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy of a member may, upon such evidence being
produced as may from time to time properly be required by the
Directors and, subject as hereinafter provided, elect either to be
registered himself as holder of the share or to have some person
nominated by
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him 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, he shall deliver or send to the company a notice in
writing signed by him stating that he so elects. If he shall elect
to have another person registered he shall execute a transfer of
the share in favour of that person. All the limitations,
restrictions and provisions of these regulations relating to the
right to transfer and the registration of transfers of shares
shall be applicable to any such notice or transfer as aforesaid as
if the death or bankruptcy of the member had not occurred and the
notice or transfer were a transfer signed by the member.
41. A 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, 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 always 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 90
days the Directors may thereafter withhold payment of all dividends or
other moneys payable in respect of the share until the requirements of
the notice have been complied with.
42. Any person to whom the right to any shares in the company has been
transmitted by operation of law shall, if the Directors refuse to
register the transfer, be entitled to call on the Directors to furnish
within 28 days a statement of the reasons for the refusal.
STOCK
43. The Company may from time to time by ordinary resolution convert any
fully paid-up shares into stock and may reconvert any stock into fully
paid-up shares of any denomination. After the passing of any resolution
converting all the fully paid-up shares of any class in the capital of
the Company into stock, any shares of that class which subsequently
become fully paid-up and rank pari passu in all other respects with
such shares shall, by virtue of this Article and such resolution, be
converted into stock transferable in the same units as the shares
already converted.
44. The holders of stock may transfer the same or any part thereof in the
same manner and subject to the same regulations as the shares from
which the stock arose might prior to conversion have been transferred
or as near thereto as circumstances admit. The
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Directors may from time to time fix the minimum amount of stock
transferable and restrict or forbid the transfer of fractions of such
minimum, but the minimum shall not without the sanction of an ordinary
resolution of the Company, exceed the nominal amount of each of the
shares from which the stock arose.
45. The holders of stock shall, according to the amount of the stock held
by them, have the same rights as regards dividends, voting at general
meetings of the Company and other matters as if they held the shares
from which the stock arose, but no such right (except as to
participation in dividends and profits of the Company and in assets on
a reduction of capital or a winding up) shall be conferred by an amount
of stock which would not, if existing in shares, have conferred such
right.
46. Such of these Articles as are applicable to fully paid up shares shall
apply mutatis mutandis to stock, and the words "share" and
"shareholder" therein shall include "stock" and "stockholder".
INCREASE OF CAPITAL
47. The Company may, from time to time, by ordinary resolution increase its
authorised capital by such sum divided into shares of such amounts as
the resolution shall prescribe.
48. Without prejudice to any special rights, privileges or restrictions for
the time being attaching to any then existing class of shares in the
capital of the Company, any new shares created pursuant to Article 47
may be issued upon such terms and conditions, and with such fights,
privileges and restrictions attached thereto as the general meeting
resolving upon the creation thereof shall direct or, if no such
direction be given, as the Directors shall determine, and in particular
such shares may be issued with a preferential, qualified or deferred
right to dividends and in the distribution of assets of the Company,
and with a special, or without any, right of voting.
49. The general meeting resolving upon the creation of any new shares may
direct that the same or any of them shall be offered in the first
instance, and either at par or at a premium or (subject to the
provisions of the Ordinance) at a discount, to all the holders for the
time being of any class of shares in the capital of the Company in
proportion to the number of shares of such class held by them
respectively, or make any other provisions as to the issue and
allotment of the new shares.
50. Subject to any direction or determination that may be given or made in
accordance with the powers contained in these Articles all new shares
created pursuant to Article 47 shall be subject to the same provisions
herein contained with reference to the payment of calls, transfer,
transmission, forfeiture, lien and otherwise as the shares in the
capital of the Company existing at the date of creation of such new
shares.
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ALTERATIONS OF SHARE CAPITAL
51. 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 of
the Company, 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 so
that the resolution whereby any share is subdivided may determine
that as between the holders of the shares resulting from such
subdivision one or more of the shares may, as compared with the
others, have any such preferred, deferred or other special rights
or be subject to any such restrictions as the Company has power to
attach to unissued or new shares;
(b) consolidate and divide its capital or any part thereof into shares
of larger amount than its existing shares; or
(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
and diminish the amount of its authorised capital by the amount of
the shares so cancelled.
52. The Company may by special resolution reduce its share capital and any
capital redemption reserve fund or any share premium account in any
manner allowed by law.
53. Where any difficulty arises in regard to any consolidation and division
under paragraph (b) of Article 51, the Directors may settle the same as
they think expedient and in particular may arrange for the sale of the
shares representing fractions and the distribution of the net proceeds
of sale in due proportion amongst the members who would have been
entitled to the fractions, and for this purpose the Directors may
authorise some person to transfer the shares representing fractions to
the purchaser thereof, who 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 relating to the sale.
MODIFICATION OF RIGHTS
54. (a) All or any of the rights attached to any class of shares in the
Capital of the company for the time being may, at any time, as
well before as during liquidation, be altered or abrogated either
with the consent in writing of the holders of not less than
three-fourths of the issued shares of the class or with the
sanction of a special resolution passed at a separate general
meeting of the holders of shares of the class, and all the
provisions contained in these Articles relating to general
meetings shall mutatis mutandis apply to every such meeting, but
so that the quorum thereof shall be not less than two persons
personally present and holding or representing by proxy
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one-third in nominal value 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, and that each holder of shares of the
class present in person or by proxy shall on a poll be entitled to
one vote for each share of the class held by him, and if at any
adjourned meeting of such holders such quorum as aforesaid is not
present, any two holders of shares of the class who are personally
present in person or by proxy shall be a quorum.
(b) The foregoing provisions of this Article shall apply to the
variation or abrogation of the rights attached to some only of the
shares of any class as if each group of shares of the class
differently treated formed a separate class, the rights whereof
are to be varied.
55. The special rights conferred upon the holders of any shares or such
class of shares shall not, unless otherwise expressly provided in the
rights attaching to or the terms of issue of such shares, be deemed to
be altered by the creation or issue of further shares ranking pari
passu therewith.
GENERAL MEETINGS
56. (a) 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 notices calling
it, and not more than 15 months shall elapse between the date of
one annual general meeting of the company and that of the next,
PROVIDED that so long as the Company holds its first annual
general meeting within 18 months of its incorporation, it need not
hold it in the year of its incorporation or in the following year.
The annual general meeting shall be held at such time and place as
the Directors shall appoint.
(b) All other general meetings shall be called extraordinary general
meetings.
57. The Directors may, whenever they think fit, and shall, on requisition
by Members in accordance with the Ordinance, proceed to convene an
extraordinary general meeting. The provisions of the Ordinance shall
apply to any requisition and to any failure by the Directors to convene
an extraordinary general meeting when so requisitioned.
NOTICE OF GENERAL MEETINGS
58. An annual general meeting and a meeting called for the passing of a
special resolution shall be called by 21 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 14 days' notice in writing at the least. The notice 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
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manner, if any, as may be prescribed by the Company in general meeting,
to such persons as are, under the Articles of the Company, entitled to
receive such notices from the Company:
PROVIDED that a meeting of the Company shall, notwithstanding that it
is called by shorter notice than that specified in this Article, be
deemed to have been duly called if it is so agreed:-
(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 a right to attend and vote at the meeting, being a
majority together holding not less than 95 per cent in nominal
value of the shares giving that right.
59. The accidental omission to give notice of a meeting or (in cases where
an instrument of proxy is sent out with the notice) the accidental
omission to send such instrument of proxy to, or the non-receipt of
notice of a Meeting or such instrument of proxy by, any person entitled
to receive such notice shall not invalidate the proceedings at that
meeting.
PROCEEDINGS AT GENERAL MEETINGS
60. All business shall be deemed special that is transacted at an
extraordinary general meeting and also all business that is transacted
at an annual general meeting with the exception of:-
(a) the declaration and sanction of dividends;
(b) the consideration of the accounts and balance sheets and the
reports of the Directors and other documents required to be
annexed to the accounts;
(c) the election of Directors in place of those retiring (if any);
(d) the appointment of the Auditors of the Company and the fixing of,
or the determination of the method of fixing, the remuneration of
the Auditors.
61. No business, save the election of a chairman of the meeting, shall be
transacted at any general meeting, unless a quorum is present when the
meeting proceeds to business. Two members present in person or by proxy
and holding between them at least fifty-one per centum (51%) in nominal
value of the issued shares of the Company for the time being shall be a
quorum for all purposes.
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62. The Chairman (if any) of the Board or, in his absence, a Deputy
Chairman (if any) shall preside as chairman at every general meeting.
If there is no such Chairman or Deputy Chairman, or if at any meeting
neither the Chairman nor a Deputy Chairman is present within fifteen
minutes after the time appointed for holding the meeting, or if neither
of them is willing to act as chairman, the Directors present shall
choose one of their number to act, or if one Director only is present
he shall preside as chairman if willing to act. If no Director is
present, or if each of the Directors present declines to act as
chairman, the persons present and entitled to vote shall elect one of
their number to be chairman of the meeting.
63. If within fifteen minutes from the time appointed for the meeting a
quorum be not present, the meeting, if convened upon a requisition as
specified in Article 57, shall be dissolved; but in any other case it
shall stand adjourned to the same day in the next week at the same time
and place, or to such other day, time and place as the chairman of the
meeting may determine. If at such adjourned meeting a quorum be not
present within fifteen minutes from the time appointed for the meeting,
the members present in person or by proxy shall be a quorum.
64. The chairman of any general meeting at which a quorum is present may,
with the consent of the meeting, and shall, if so directed by the
meeting, adjourn the meeting from time to time and from place to place
or sine die; but no business shall be transacted at any adjourned
meeting other than business which might have been transacted at the
meeting from which the adjournment took place, unless due notice
thereof is given or such notice is waived in the manner prescribed by
these Articles. When a meeting is adjourned for thirty days or more, or
sine die, 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 the business to be
transacted thereat. Where a meeting is adjourned sine die the time and
place for the adjourned meeting shall be fixed by the Directors.
VOTING
65. (a) At any general meeting a resolution put to the vote of the
meeting shall be decided on a show of hands unless, before or on
the declaration of the result of the show of hands or on the
withdrawal of any other demand for a poll, a poll is demanded by:-
(i) the chairman of the meeting; or
(ii) at least two members present in person or by proxy and
entitled to vote; or
(iii)any member or members present in person or by proxy and
representing in the aggregate not less than one-tenth of the
total voting rights of all members having the right to attend
and vote at the meeting; or
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(iv) any member or members present in person or by proxy and
holding shares conferring a right to attend and vote at the
meeting on which there have been paid up sums in the
aggregate equal to not less than one-tenth of the total sum
paid up on all shares conferring that right.
(b) Unless a poll is so demanded and the demand is not withdrawn, a
declaration by the chairman that a resolution has, on a show of
hands, been carried unanimously or by a particular majority or not
carried by a particular majority or lost shall be final and
conclusive evidence of the fact without proof of the number of the
votes recorded for or against such resolution.
66. A demand for a poll may be withdrawn only with the approval of the
meeting. If a poll be directed or demanded in the manner above
mentioned it shall (subject to the provisions of Article 68 hereof) be
taken at such time (being not later than seven days after the date of
the demand) and in such manner as the chairman of the meeting may
appoint. No notice need be given of a poll not taken immediately. The
result of such poll shall be deemed for all purposes to be the
resolution of the meeting at which the poll was so directed or
demanded.
67. In the case of an equality of votes at any general meeting, whether
upon a show of hands or on a poll, the chairman of the meeting shall be
entitled to a second or casting vote.
68. 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.
69. (a) No objection shall be made to the validity of any vote except
at a meeting or poll at which such vote shall be tendered and
every vote whether given personally or by proxy not disallowed at
such meeting or poll shall be deemed valid for all purposes
whatsoever of such meeting or poll.
(b) In case of any dispute as to voting the chairman shall determine
the same, and such determination shall be final and conclusive.
70. Subject to the provisions of the Ordinance, 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. A written notice of confirmation of
such resolution in writing sent by or on behalf of a member shall be
deemed to be his signature to such resolution in writing for the
purposes of this Article. Such resolution in writing may consist of
several documents, and each such document shall be certified by the
Secretary to contain the correct version of the proposed resolution.
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VOTES OF MEMBERS
71. Subject to any special rights or restrictions for the time being
attaching to any special class of shares in the capital of the Company,
on a show of hands every member who is present in person or by proxy or
by attorney shall be entitled to one vote only, and, in the case of a
poll, every member present in person or by proxy or by attorney shall
be entitled to one vote for each share held by him.
72. On a poll, votes may be given either personally or by proxy and a
member entitled to more than one vote need not use all his votes or
cast all the votes he uses in the same way.
73. 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, curator bonis or other person
in the nature of a committee or curator bonis appointed by that court,
and any such committee, curator bonis or other person may, on a poll,
vote by proxy. If any member be a minor, he may vote by his guardian or
one of his guardians who may give their votes personally or by proxy.
PROXIES
74. (a) A proxy need not be a member of the Company.
(b) An instrument appointing a proxy shall be in writing in any usual
or common form or in any other form which the Directors may
accept, and shall be deemed, save where the contrary appears on
the face of the instrument of proxy, to confer authority to demand
or concur in demanding a poll and to include power to act
generally at the meeting for the person giving the proxy and any
adjournment thereof, and either to vote on any resolution (or
amendment thereto) put to the meeting for which it is given as the
proxy thinks fit. No instrument appointing a proxy shall be valid
except for the meeting mentioned therein and any adjournment
thereof.
75. The instrument appointing a proxy shall be signed by the appointor, or
his duly authorised attorney in writing or, if such appointor be a
corporation, under its common seal or signed by such officer, attorney
or other person duly authorised in that behalf.
76. The instrument appointing a proxy and the power of attorney or other
authority (if any) under which it is signed, or a notarially certified
copy of such power or authority, shall be deposited at the Office at
least forty-eight hours before the time fixed for holding the meeting
at which the person named in such instrument proposes to vote or, in
the case of a poll, not less than twenty-four hours before the time
appointed for taking the poll; otherwise the person so named shall not
be entitled to vote in respect thereof except with the approval of the
chairman of the meeting.
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77. Any member may by power of attorney appoint any person to be his
attorney for the purpose of voting at any meeting, and such power may
be a special power limited to any particular meeting or a general power
extending to all meetings at which such member is entitled to vote.
Every such power shall be deposited at the Office at least forty-eight
hours before being acted upon.
78. (a) An instrument of proxy may be revoked by forwarding to the
Office written notification of such revocation signed by or on
behalf of the person who issued or authorised the issue of the
instrument of proxy.
(b) A vote given in accordance with the terms of an instrument of
proxy or power of attorney shall be valid notwithstanding the
previous death or insanity of the principal, or revocation of the
proxy or power of attorney, or transfer of the shares in respect
of which the vote is given, provided that no intimation in writing
of the death, insanity, revocation or transfer shall have been
received at the Office twenty-four hours at least before the time
fixed for holding the meeting, or adjourned meeting, or the taking
of the poll, at which the instrument of proxy is to be used.
CORPORATIONS ACTING BY REPRESENTATIVES
79. Any corporation which is a member of the Company may by resolution of
its directors or other governing body authorize 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 authorized
shall be entitled to exercise the same powers on behalf of the
corporation which he represents as that corporation could exercise if
it were an individual member of the Company.
DIRECTORS
80. The first Directors shall be appointed in writing by the subscribers to
the Memorandum of Association of the Company or by the Company in
general meeting.
81. Unless and until otherwise determined by an ordinary resolution of the
Company, the Directors shall not be less than two in number, and there
shall be no maximum number of Directors.
82. A Director need not hold any shares in the Company. A director who is
not a member of the Company shall nevertheless be entitled to attend
and speak at general meetings.
DIRECTORS' REMUNERATION
83. The remuneration of the Directors shall from time to time be determined
by the Company in general meeting. Such remuneration shall be deemed to
accrue from day to day. The
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Directors may also be paid all travelling, hotel and other expenses
properly incurred by them in attending and returning from meetings of
the Directors or any committee of the Directors or general meetings of
the Company or in connection with the business of the Company.
POWERS OF DIRECTORS
84. The business of the Company shall be managed by the Directors, who
shall pay all expenses incurred in the formation and registration of
the Company, and who may exercise all such powers of the company as are
not by the Ordinance or by these Articles required to be exercised by
the Company in general meeting, subject to any provision in these
Articles or the Ordinance and to such regulations, not being
inconsistent with any such provision, as may be prescribed by the
Company in general meeting; but no such regulation shall invalidate any
prior act of the Directors which would have been valid if such
regulation had not been made. The general powers given by this Article
shall not be limited or restricted by any special authority or power
given to the Directors by any other Article.
85. The Directors may establish any local boards or agencies for managing
any of the affairs of the Company, either in Hong Kong or elsewhere,
and may appoint any persons to be members of such local boards, or any
managers or agents for the Company, and may fix their remuneration, and
may delegate to any local board, manager or agent any of the powers,
authorities and discretions vested in the Directors, with power to
sub-delegate, and may authorise the members of any local boards, or any
of them, to fill any vacancies therein, and to act notwithstanding
vacancies, and any such appointment and delegation may be made upon
such terms and subject to such conditions as the Directors may think
fit, and the Directors may 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.
86. The Directors may from time to time and at any time by power of
attorney or otherwise appoint any company, firm or person or any
fluctuating body of persons, 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 power 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 sub-delegate all or any of the
powers, authorities and discretions vested in him.
87. Subject to and to the extent permitted by the Ordinance, the Company,
or the Directors on behalf of the Company, may cause to be kept in any
territory a Branch Register of
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members resident in such territory, and the Directors may make and vary
such regulations as they may think fit respecting the keeping of any
such Branch Register.
88. All cheques, promissory notes, drafts, bills of exchange, and other
negotiable or transferable instruments, and a 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.
89. The Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge all or any part of the undertaking,
property and assets (present and future) and uncalled capital of the
Company and to issue debentures including, subject to Section 57B of
the Ordinance, convertible debentures and convertible debenture stock,
and other securities, whether outright or as collateral security for
any debt, liability or obligation of the Company or of any third party.
APPOINTMENT AND REMOVAL OF DIRECTORS
90. The Company may by special resolution remove any Director
notwithstanding anything in these Articles or in any agreement between
him and the Company (but without prejudice to any right to damages for
termination of such agreement not in accordance with the terms
thereof), and may, if thought fit, by ordinary resolution, appoint
another person in his stead.
91. The Company may, without prejudice to the powers of the Directors under
Article 92, from time to time, by ordinary resolution appoint new
Directors either to fill a casual vacancy or as an addition to the
existing Directors, and change any minimum or maximum number of
Directors specified in Article 81, or prescribe such minimum or maximum
if there be none so specified.
92. The Directors shall have power, exercisable at any time and from time
to time, to appoint any other person as a Director, either to fill a
casual vacancy or as an addition to the Board.
93. 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. If there
shall be no Directors able or willing to act, then any member may
summon a general meeting for the purpose of appointing Directors.
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ALTERNATE DIRECTORS
94. Each Director may by written notification to the Company nominate any
other person to act as alternate Director in his place and, at his
discretion, in similar manner remove such alternate Director. A
Director may appoint two or more persons in the alternative to act as
Alternate Director and in the event of any dispute as to who is to
represent the Director as his Alternate the first named of such
alternative persons should be the only person recognised as the
Alternate Director and shall in any case, if in Hong Kong, be the only
person entitled to receive notice of Directors' meetings in the absence
from Hong Kong of his appointor. The alternate Director shall (except
as regards the power to appoint an alternate) be subject in all
respects to the terms and conditions existing with reference to the
other Directors of the Company; and each alternate Director, whilst
acting as such, shall exercise and discharge all the functions, powers
and duties of the Director he represents, but shall look to such
Director solely for his remuneration as alternate Director. Every
person acting as an alternate Director shall have one vote for each
Director for whom he acts as alternate (in addition to his own vote if
he is also a Director). The signature of an alternate Director to any
resolution in writing of the Board or a committee of the Board shall,
unless the notice of his appointment provides to the contrary, be as
effective as the signature of his appointor. Any person appointed as an
alternate Director shall vacate his office as such alternate Director
as and when the Director by whom he has been appointed removes him or
vacates office as Director. A Director shall not be liable for the acts
or defaults of any alternate Director appointed by him.
DISQUALIFICATION OF DIRECTORS
95. The office of a Director shall ipso facto be vacated:-
(a) if he becomes prohibited by law or court order from being a
Director;
(b) if a receiving order or, in the case of a company a winding-up
order is made against him or he makes any arrangement or
composition with his creditors;
(c) if he becomes of unsound mind;
(d) if he gives the Company notice in writing that he resigns his
office;
(e) if he is removed by a special resolution of the company in
accordance with the provisions of these Articles;
(f) if he is convicted of an arrestable offence.
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DIRECTORS' INTERESTS
96. A Director may hold any other office or place of profit under the
company (other than the office of Auditor), and he or any firm of which
he is a member may act in a professional capacity for the Company in
conjunction with his office of Director, for such period and on such
terms (as to remuneration and otherwise) as the Directors may
determine. No Director or intending Director shall be disqualified by
his office from contracting with the Company, nor shall any contract or
arrangement entered into by or on behalf of the Company in which any
Director or intending Director is in any way interested be liable to be
avoided, nor shall any Director so contracting or being so interested
be liable to account to the Company for any profit, remuneration or
other benefits of such Director holding that office, or of any
fiduciary relationship thereby established.
97. A Director who is in any way, whether directly or indirectly,
interested in a contract or proposed contract (being a contract of
significance in relation to the Company's business) with the Company
shall declare the nature of his interest in accordance with the
provisions of the Ordinance. A general notice given to the Directors 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, arrangement
or dealing which may, after the date of the notice, be entered into or
made with that company or firm, shall, for the purposes of this
Article, be deemed to be a sufficient disclosure of interest in
relation to any contract, arrangement or dealing so entered into or
made.
98. A Director may vote as a Director in regard to any contract or
arrangement in which he is interested or upon any matter arising
thereout, and if he shall so vote his vote shall be counted and he
shall be taken into account in determining a quorum when any such
contract or arrangement is under consideration.
99. A Director may hold office as a director in or as manager of any other
company in which the Company is a shareholder or is otherwise
interested, and (subject to any agreement with the Company to the
contrary) shall not be liable to account to the Company for any
remuneration or other benefits receivable by him from such other
company. The Board may exercise the voting power conferred by the
shares in any company held or owned by the Company in such manner and
in all respects as the Board thinks fit (including the exercise thereof
in favour of any resolution appointing the Directors or any of them
directors of such company or voting or providing for the payment of
remuneration to the directors of such company) and any Director of the
Company may vote in favour of the exercise of such voting rights other
than his own appointment or the arrangement of the terms thereof, in
manner aforesaid.
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MANAGING DIRECTORS AND OTHER APPOINTMENTS
100. The Directors may, from time to time, appoint one or more of their
number to be Managing Director or Joint Managing Director of the
Company, or to hold such office in the management, administration or
conduct of the business of the Company as they may decide, and for such
period and upon such terms and for such remuneration as the Directors
shall think fit, and the Directors may also, from time to time (subject
to the provisions of any agreement between him or them and the Company)
remove him or them from office, and appoint another or others in his or
their place or places.
101. A Managing Director or a Joint Managing Director (subject to the
provisions of any agreement between him as Managing Director or a Joint
Managing Director and the Company) shall be subject to the same
provisions as to resignation and removal as the other Directors of the
Company, and shall ipso facto and immediately cease to be Managing
Director or Joint Managing Director if he shall cease to hold the
office of Director.
102. The Directors may, from time to time, entrust to and confer upon any
Managing Director, Joint Managing Director or Director holding any
other office in the management, administration or conduct of the
business of the Company, such of the powers exercisable under these
Articles by the Directors as they may think fit, and may confer such
powers for such time, and to be exercised for such objects and
purposes, and upon such terms and conditions and with such restrictions
as they may consider expedient, and may confer such powers collaterally
with, or to the exclusion of, and in substitution for, all or any of
the powers of the Directors in that behalf, and may from time to time
revoke, withdraw, alter or vary all or any of such powers.
PROCEEDINGS OF DIRECTORS
103. 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 by the Board, 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 of the meeting
shall have a second or casting vote. A Director or the Secretary may,
at any time, summon a meeting of the Directors.
104. Notice of a meeting of Directors shall be deemed to be duly given to a
Director if it is given to him personally in writing or by word of
mouth or sent to him at his last known address or any other address
given by him to the Company for this purpose. A Director may consent to
short notice of and may waive notice of any meeting and any such waiver
may be retrospective.
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105. The Directors may elect a Chairman of the Board 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
fifteen minutes after the time appointed for holding the same, the
Directors present shall choose one of their number to be chairman of
such meeting.
106 (a.) A resolution in writing signed by a simple majority of the
Directors for the time being shall be as effective for all
purposes as a resolution of the Directors passed at a meeting duly
convened, held and constituted. A written notification of
confirmation of such resolution in writing sent by a Director
shall be deemed to be his signature to such resolution in writing
for the purposes of this Article. Such resolution in writing may
consist of several documents, each signed by one or more
Directors.
(b.) Any Director or member of a committee of Directors may participate
in a meeting of the Directors or such committee by means of a
telephone or other audio communications equipment whereby all
persons attending or participating the meeting can hear each
other. The person or persons participating the meeting in the
aforesaid manner shall be deemed for all purposes to be present in
person at such meeting.
107. A meeting of the Directors at which a quorum is present shall be
competent to exercise all the powers, authorities and discretions for
the time being vested in or exercisable by the Directors generally.
108. The Directors may, from time to time, appoint committees consisting of
such persons as they think fit, and may delegate any of their powers to
any such committee and, from time to time, revoke any such delegation
and discharge any such committee wholly or in part. Any committee so
formed shall, in the exercise of the powers so delegated, conform to
any regulations that may, from time to time, be imposed upon it by the
Directors. Any such committee shall be properly constituted even if it
consists of one person.
109. The meetings and proceedings of any such committee consisting of two or
more members shall he governed mutatis mutandis by the provisions of
these Articles regulating the meetings and proceedings of the Directors
insofar as the same are not superseded by any regulations made by the
Directors under the last preceding Article.
110. All acts done bona fide by any meeting of the Directors or of a
committee of Directors, or by any persons acting as Directors, shall,
notwithstanding 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, or had vacated office, he as valid as if every
such person had been duly appointed and was qualified and continued to
be a Director.
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MINUTES
111. The Directors shall cause to be entered and kept in books provided for
the purpose minutes of the following:-
(a) all appointments of officers;
(b) the names of the Directors and any alternate Director who is not
also a Director present at each meeting of the Directors and of
any committee of Directors;
(c) all orders made by the Directors and committees of Directors; and
(d) all resolutions and proceedings of general meetings and meetings
of the Directors and committees.
Any such minutes of any meeting of the Directors, or any committee, or
of the Company, if purporting to be signed by the Chairman of such
meeting, or by the Chairman of the next succeeding meeting shall be
receivable as prima facie evidence of the matters stated in such
minutes.
THE SEAL
112. The Directors shall forthwith procure a common seal to be made for the
Company, and shall provide for the safe custody thereof. The Seal shall
not be affixed to any instrument except by the authority of a
resolution of the Directors or a committee of the Directors and every
instrument to which the Seal shall be affixed shall be signed by one
Director or some other person nominated by the Directors for the
purpose.
113. The Company may exercise all the powers of having official seals
conferred by the Ordinance and such powers shall be vested in the
Directors.
SECRETARY
114. The Company shall have a Secretary. The Secretary and any joint
secretaries or deputy or assistant secretary or secretaries may be
appointed by the Directors for such term, at such remuneration and upon
such conditions as the Directors may think fit and the Secretary and
any joint secretaries or deputy or assistant secretary so appointed may
at any time be removed from office by the Directors. A Director may be
the Secretary. The First Secretary shall be Offshore Incorporations
Limited.
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115. A provision of the Ordinance or these regulations requiring or
authorizing 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 place of, the Secretary.
DIVIDENDS AND RESERVES
116. (a.) The Company may by ordinary resolution declare dividends but
no such dividend shall exceed the amount recommended by the
Directors.
(b.) No distribution (as defined in section 79A of the Ordinance) shall
be made save in accordance with the provisions of Part IIA of the
Ordinance.
117. The Directors may, if they think fit, from time to time, pay to the
members such interim dividends as appear to the Directors to be
justified by the profits of the Company. If at any time the share
capital of the Company is divided into different classes the Directors
may pay such interim dividends in respect of those shares in the
capital of the Company which confer on the holders thereof deferred or
non-preferred rights as well as in respect of those shares which confer
on the holders thereof preferential or special rights in regard to
dividend, and provided that the Directors act bona fide they shall not
incur any responsibility to the holders of shares conferring a
preference for any damage that they may suffer by reason of the payment
of an interim dividend on any shares having deferred or non-preferred
rights. The Directors may also pay at half-yearly or at other suitable
intervals to be settled by them any dividend which may be payable at a
fixed rate if they are of the opinion that the profits justify the
payment.
118. The Directors may, before recommending any dividend, set aside out of
the profits of the Company such sums as they think proper as a reserve
or reserves which shall, at the discretion of the Directors, be
applicable for any purpose to which the profits of the Company may be
properly applied, and pending such application may, at the like
discretion, either be employed in the business of the Company or be
invested in such investments (other than shares of the company) as the
Directors may from time to time think fit. The Directors may also
without placing the same to reserve carry forward any profits which
they may think prudent not to divide.
119. No dividend shall be payable except out of the profits of the Company,
and no dividend shall bear interest as against the Company.
120. The Directors may retain any dividend or other monies; payable on or in
respect of a share on which the Company has a lien, and may apply the
same in or towards satisfaction of the debts and liabilities in respect
of which the lien exists.
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121. Any resolution declaring a dividend on shares of any class, whether a
resolution of the Company in general meeting or a resolution of the
Directors, may specify that the same shall be payable to the persons
registered as the holders of such shares at the close of business on a
particular date, notwithstanding that it may be a date prior to that on
which the resolution is passed, and thereupon the dividend shall be
payable to them in accordance with their respective holdings so
registered, but without prejudice to the rights inter se in respect of
such dividend of transferors and transferees of any such shares. The
provisions of this Article shall mutatis mutandis apply to
capitalizations to be effected in pursuance of these Articles.
122. Unless and to the extent that the rights attached to any shares or the
terms of issue thereof otherwise provide, all dividends shall (as
regards any shares not fully paid throughout the period in respect of
which the dividend is paid) be apportioned and paid pro rata according
to the amounts paid on the shares during any portion or portions of the
period in respect of which the dividend is paid. For the purposes of
this Article no amount paid on a share in advance of calls shall be
treated as paid on the share.
123. Unless otherwise directed, any dividend or other monies payable in cash
on or in respect of a share may be paid by cheque or warrant sent
through the post to the registered address of the member or person
entitled, or, in the case of joint holders, to the registered address
of that one whose name stands first on the register in respect of joint
holding, or addressed to such person at such address as the holder or
joint holders shall direct. The Company shall not be liable or
responsible for any cheque or warrant lost in transmission nor for any
dividend or other monies lost to the member or person entitled thereto
by the forged endorsement of any cheque or warrant. Payment of the
cheque or warrant by the banker on whom it is drawn shall be a good
discharge to the Company.
124. The Directors may, with the sanction of the Company in general meeting,
distribute in specie or in kind among the members in satisfaction in
whole or in part of any dividend any of the assets of the Company, and
in particular any shares or securities of other companies to which the
Company is entitled.
125. 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 all dividends unclaimed for two years
after having been declared may be forfeited by the Directors and shall
revert to the Company. The payment into a separate account of any
monies payable in respect of a share shall not constitute the Company a
trustee in respect thereof for any person.
CAPITALISATION OF RESERVES ETC.
126. The Company in general meeting may upon the recommendation of the
Directors resolve to capitalise any part of the amount for the time
being standing to the credit of any of the
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Company's reserve accounts or to the credit of the profit and loss
account or otherwise available for distribution, and accordingly that
such sums be set free for distribution amongst the members who would
have been entitled thereto if distributed by way of dividend and in the
same 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 or other obligations of the Company
to be allotted and distributed credited as fully paid-up to and amongst
such members in the proportions aforesaid, or partly in 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 purposes 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.
127. 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
allotments and issues of fully paid shares or debentures, if any, and
generally shall do all acts and things required to give effect thereto.
128. For the purpose of giving effect to any resolution under Articles 124
and 126 hereof the Directors may settle any difficulty which may arise
in regard to the distribution as they think expedient, and in
particular may issue fractional certificates, and may fix the value for
distribution of any specific assets, and may determine that cash
payments shall be made to any members upon the footing of the value so
fixed or that fractions of such value as the Directors may determine
may be disregarded in order to adjust the rights of all parties, and
may vest any such cash or specific assets in trustees upon such trusts
for the persons entitled to the dividend or capitalised fund as may
seem expedient to the Directors. The provisions of the Ordinance in
relation to the filing of contracts for allotment shall be observed,
and the Directors may appoint any person to sign such contract on
behalf of the persons entitled to share in the appropriation and
distribution, and such appointment shall be effective and binding upon
all concerned, and the contract may provide for the acceptance by such
persons of the shares or debentures to be allotted and distributed to
them respectively in satisfaction of their claims in respect of the sum
so capitalised.
ACCOUNTS AND AUDITORS
129. (a) The Directors shall cause proper and true books of account to be
kept of all sums of money received and expended by the Company,
and the matters in respect of which such receipt and expenditure
take place; of all sales and purchases of goods by the Company;
and of the assets and liabilities of the Company and of all other
matters necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
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(b) 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.
130. The Directors shall from time to time, in accordance with the
provisions of the Ordinance, cause to be prepared and to be laid before
the Company in general meeting such Profit and Loss Accounts, Balance
Sheets, Group Accounts (if any) and Reports as are required by the
Ordinance.
131. A copy of every Balance Sheet (including every document required by law
to be annexed thereto) which is to be laid before the Company in
general meeting, together with a copy of the Directors' Report and 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 all persons other than
members or holders of debentures of the Company, being persons entitled
to receive notices of general meetings of the Company:
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 nor
to more than one of the joint holders of any shares or debentures.
132. Auditors shall be appointed and their duties regulated in the manner
provided by the Ordinance.
NOTICES
133. Any notice or other document may be served by the company upon any
member either personally or by sending it through the post in prepaid
letter, envelope or wrapper addressed to such member at his registered
address, and, in any case where the registered address of a member is
outside Hong Kong, by prepaid airmail. The signature to any notice to
be given by the Company may be written or printed.
134. Each member shall, from time to time, notify in writing to the Company
some place which shall be deemed his registered address within the
meaning of the last preceding Article.
135. Any notice sent by post shall be deemed to have been served in the case
where the member's registered address is in Hong Kong at the expiration
of 48 hours after the letter, envelope or wrapper containing the same
was posted in Hong Kong and in any other case on the fifth day after
the day of posting. In proving such service it shall be sufficient to
30
prove that the letter, envelope or wrapper containing the notice was
properly addressed and put in the post as a prepaid letter.
136. A notice may be given by the Company to the persons 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 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, if any, within
Hong Kong supplied for the purpose by the persons claiming to be so
entitled, or (until I such an 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.
137. Notice of every general meeting shall be given in any manner
hereinbefore authorized to:-
(a) every member except those members who (having no registered
address within Hong Kong) have not supplied to the Company an
address within Hong Kong for the giving of notices to them;
(b) every person entitled to a share in consequence of the death or
bankruptcy of a member who, but for his death or bankruptcy, would
be entitled to receive notice of the meeting; and
(c) the Auditors for the time being of the Company.
No other person shall be entitled to receive notices of general
meetings.
138. Any summons, notice, order or other document required to be sent to or
served upon the Company, or upon any officer of the Company, may be
sent or served by leaving the same or sending it through the post in a
prepaid letter, envelope or wrapper, addressed to the Company or to
such officer at the Office.
139. Subject to any special provisions contained in these Articles or in the
Ordinance, a notices required to be given by advertisement shall be
advertised in at least one daily Chinese and one daily English
newspaper in Hong Kong.
140. In reckoning the period for any notice given under these Articles, the
day on which notice is served, or deemed to be served and the day for
which such notice is given shall be excluded.
WINDING UP
141. If the Company shall be wound up, the surplus assets remaining after
payment to all creditors shall be divided among the members in
proportion to the capital which at the
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commencement of the winding up is paid up on the shares held by them
respectively, and if such surplus assets shall be insufficient to repay
the whole of the paid-up capital, they shall be distributed so that, as
nearly as may be, the losses shall be home by 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, however, to be
subject to the rights of any shares which may be issued on special
terms or conditions.
142. 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 Ordinance, 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 of 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.
INDEMNITY
143. Every Director, Managing Director, agent, auditor, Secretary and other
officer for the time being of the Company shall be indemnified out of
the assets of the Company against any liability incurred by him in
relation to the Company in defending any proceedings, whether civil or
criminal, in which judgment is given in his favour or in which he is
acquitted or in connection with any application under Section 358 of
the Ordinance in which relief is granted to him by the court.
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Names, Addresses and Descriptions of Subscribers
For and on behalf of
OFFSHORE INCORPORATIONS LIMITED
(Sd.) E.T. POWELL
.......................................
E. T. POWELL, Director
9/F Ruttonjee House
11 Duddell Street
Central
Hong Kong
Corporation
For and on behalf of
WELL HELD LIMITED
(Sd.) E. T. POWELL
.......................................
E. T. POWELL, Authorised Representative
9/17 Ruttonjee House
11 Duddell Street
Central
Hong Kong
Corporation
DATED 5th September 1996
WITNESS to the above signatures: (Sd.) FANDY TSOI
9/F Ruttonjee House
11 Duddell Street
Central
Hong Kong
Administrative Assistant
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