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EXHIBIT 3.2
THE COMPANIES ORDINANCE (CHAPTER 32)
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PUBLIC COMPANY LIMITED BY SHARES
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ARTICLES OF ASSOCIATION
OF
ZINDART LIMITED
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PRELIMINARY
1. The regulations in Table A in the First Schedule to the Ordinance shall
not apply to the Company. Any reference to an "Article" or "Articles"
shall mean an article or articles contained herein.
INTERPRETATION
2. (a) In these Articles:
"ORDINANCE" means the Companies Ordinance, Chapter 32.
"SEAL" means the common seal of the Company or any official seal which
the Company may, by the Ordinance, be permitted to have.
"SECRETARY" means any person appointed to perform the duties of the
secretary of the Company.
Expressions referring to writing shall, unless the contrary intention
appears, be construed as including references to printing, lithography,
photography, and other modes of representing or reproducing words in a
visible form.
Unless the context otherwise requires, words or expressions contained
in these Articles shall bear the same meaning as in the Ordinance or
any statutory modification thereof in force at the date at which these
Articles become binding on the Company.
The headings are inserted for convenience only and shall not affect the
construction of these Articles.
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(b) A cable telex or telefax message sent by a member or by a
director of the Company shall be deemed to be a document
signed by him for the purposes of Article 89.
SHARE CAPITAL AND VARIATION OF RIGHTS
3. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares, any share in the
Company may be issued with such preferred, deferred or other special
rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise as the Company may from time to time by
ordinary resolution determine.
4. Subject to the provisions of Section 49 of the Ordinance, any
preference shares may, with the sanction of an ordinary resolution, be
issued on the terms that they are, or at the option of the Company are
liable, to be redeemed on such terms and in such manner as the Company
before the issue of the shares may by special resolution determine.
5. If at any time the share capital is divided into different classes of
shares, the rights attached to any class may, whether or not the
Company is being wound up, be varied with the consent in writing of the
holders of three-fourths in nominal value of the issued shares of that
class, or with the sanction of a special resolution passed at a
separate general meeting of the holders of the shares of the class.
6. 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.
7. The Company may exercise the powers of paying commissions conferred by
Section 46 of the Ordinance, provided that the rate per cent or the
amount of the commission paid or agreed to be paid shall be disclosed
in the manner required by the said Section and the rate of the
commission shall not exceed the rate of 10 per cent of the price at
which the shares in respect whereof the same is paid are issued or an
amount equal to 10 per cent of such price (as the case may be). Such
commission may be satisfied by the payment of cash or the allotment of
fully or partly paid shares or partly in one way and partly in the
other. The Company may also on any issue of shares pay such brokerage
as may be lawful.
8. Except as required by law, no person shall be recognized 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 recognize (even when having notice
thereof) any equitable, contingent, future or partial interest in any
share or any interest in any fractional part of a share or (except only
as by these Articles or by law otherwise provided) any other rights in
respect of any share except an absolute right to the entirety thereof
in the registered holder.
9. Every person whose name is entered as a member in the register of
members shall be entitled without payment to receive within 2 months
after allotment or lodgment of transfer (or within such other period as
the conditions of issue shall provide) one
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certificate for all his shares or several certificates each for 1 or
more of his shares. Every certificate shall be under the seal, or under
the official seal kept by the Company under Section 73A of the
Ordinance, and shall specify the shares to which it relates and the
amount paid up thereon. Provided that in respect of a share or shares
held jointly by several persons me Company shall not be bound to issue
more than 1 certificate, and delivery of a certificate for a share to 1
of several joint holders shall be sufficient delivery to all such
holders.
10. If a share certificate be defaced, lost or destroyed, it may be renewed
on such terms (if any) as to evidence and indemnity and the payment of
out-of-pocket expenses of the Company of investigating evidence as the
directors think fit.
11. The Company shall not give, whether directly or indirectly, and
whether by means of a loan, guarantee, the provision of security or
otherwise, any financial assistance for the purpose of or in connection
with a purchase or subscription made or to be made by any person of or
for any shares in the Company or in its holding company nor shall the
Company make a loan for any purpose whatsoever on the security of its
shares or those of its holding company, but this Article shall not
prohibit any transaction permitted by Section 47C of the Ordinance.
TRANSFER AND TRANSMISSION OF SHARES
12. The instrument of transfer of any share shall be executed by or on
behalf of the transferor and transferee, and the transferor shall be
deemed to remain a holder of the share until the name of the transferee
is entered in the register of members in respect thereof.
13. Subject to such of the restrictions of these Articles as may be
applicable, any member may transfer all or any of his shares by
instrument in writing in any usual or common form or any other form
which the directors may approve.
14. The directors may decline to register the transfer of a share (not
being a fully paid share) to a person of whom they shall not approve,
and they may also decline to register the transfer of a share on which
the Company has a lien.
15. Any person becoming entitled to a share in consequence of the death or
bankruptcy of a member (or, being a company, the liquidation thereof)
may elect, instead of being registered himself as the holder of the
share, to have some person nominated by him registered as the
transferee thereof but if he shall so elect, the directors shall have
the same right to refuse 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 (or liquidation), as the case may be.
16. 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 testify his election by executing to
that person a transfer of the share. All the limitations, restrictions
and provisions of these Articles relating to the right to transfer and
the registration of transfers of shares shall be
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applicable to any such notice or transfer as aforesaid as if the death
or bankruptcy (or liquidation) of the member had not occurred and the
notice or transfer were a transfer signed by that member.
17. A person becoming entitled to a share by reason of the death or
bankruptcy (or liquidation) 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,
bonuses or other moneys payable in respect of the share until the
requirements of the notice have been complied with.
18. 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.
19. The directors may decline to recognize any instrument of transfer
unless:
(a) a fee of HK$5 or such lesser sum as the directors may from
time to time require is paid to the Company in respect
thereof;
(b) the instrument of transfer is accompanied by the certificate
of the shares to which it relates, and such other evidence as
the directors may reasonably require to show the right of the
transferor to make the transfer; and
(c) the instrument of transfer is in respect of only one class of
share.
20. If the directors refuse to register a transfer they shall within 2
months after the date on which the transfer was lodged with the Company
send to the transferor and transferee notice of the refusal.
21. The registration of transfers may be suspended at such times and for
such periods as the directors may from time to time determine, provided
always that such registration shall not be suspended in any year for
more than 30 days or, where the period for closing the register of
members is extended in respect of that year under Section 99(2)(a) of
the Ordinance, for more than that extended period.
22. The Company shall be entitled to charge a handling fee on the
registration of every probate, letters of administration, certificate
of death or marriage, power of attorney, or other instrument.
23. 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,
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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.
CONVERSION OF SHARES INTO STOCK
24. The Company may by ordinary resolution convert any paid-up shares into
stock, and reconvert any stock into paid-up shares of any denomination.
25. The holders of stock may transfer the same, or any part thereof, in the
same manner, and subject to the same Articles, as and subject to which
the shares from which the stock arose might previously to conversion
have been transferred, or as near thereto as circumstances admit; and
the directors may from time to time fix the minimum amount of stock
transferable but so that such minimum shall not exceed the nominal
amount of the shares from which the stock arose.
26. The holders of stock shall, according to the amount of stock held by
them, have the same rights, privileges and advantages as regards
dividends, voting at meetings of the Company and other matters as if
they held the shares from which the stock arose, but no such privilege
or advantage (except participation in the dividends and profits of the
Company and in the assets on winding up) shall be conferred by an
amount of stock which would not, if existing in shares, have conferred
that privilege or advantage.
27. Such of the Articles of the Company as are applicable to paid-up shares
shall apply to stock, and the words "share" and "shareholder" therein
shall include "stock" and "stockholder".
ALTERATION OF CAPITAL
28. The Company may from time to time by ordinary resolution increase the
share capital by such sum, to be divided into shares of such amount, as
the resolution shall prescribe.
29. The Company may by ordinary resolution:
(a) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(b) sub-divide its existing shares, or any of them, into shares of
smaller amount than is fixed by the Memorandum of Association
subject, nevertheless, to the provisions of Section 53(1)(d)
of the Ordinance;
(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.
30. The Company may by special resolution reduce its share capital, any
capital redemption reserve fund or any share premium account in any
manner and with, and subject to, any incident authorized, and consent
required, by law.
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PURCHASE OF OWN SHARES
31. At any time while the Company is a listed company within the meaning of
the Ordinance, it may, subject to sections 49, 49A, 49B(6), 49BA, 49C,
49E, 49F, 49G, 49H, 49P, 49Q, 49R and 49S of the Ordinance, purchase
its own shares (including any redeemable shares).
32. At any time while the Company is an unlisted company within the meaning
of the Ordinance, it may, subject to sections 49 to 49S of the
Ordinance, purchase its own shares (including any redeemable shares).
33. Notwithstanding section 49B(1) and (2) but subject to sections 49, 49A,
49B(6), 49F, 49G, 49H; 4g1(4) and (5), 49P, 49Q, 49R and 49S of the
Ordinance (except that such purchases may be made either out of or
otherwise than out of the distributable profits of the Company or the
proceeds of a fresh issue of shares), the Company may purchase its own
shares (including any redeemable shares) in order to:
(a) settle or compromise a debt or claim;
(b) eliminate a fractional share or fractional entitlement or an
odd lot of shares (as defined in section 49B(5) of the
Ordinance;
(c) fulfil an agreement in which the Company has an option, or
under which the Company is obliged, to purchase shares under
an employee share scheme which had previously been approved by
the Company in general meeting; or
(d) comply with an order of the court under:
(i) section 8(4)
(ii) 7G(5), where such order provides for the matters
referred to in section 47G(6); or
(iii) section 168A(2)
of the Ordinance.
ALLOTMENT OF SHARES
34. The directors of the Company may, without the approval of the Company
in general meeting, offer to issue new shares in the Company to
existing shareholders pro rata to their holding of shares in the
Company. The directors may not issue new shares of the Company in any
other manner without the prior approval of the Company in general
meeting. Any such approval given in general meeting shall continue in
force until the conclusion of the following annual general meeting or
the expiration of the period within which the next annual general
meeting is required by law to be held. If such approval is given, the
unissued shares of the Company shall be at the disposal of the board of
directors, which may offer, allot, grant options over or otherwise
dispose of them to such
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persons, at such times and for such consideration and upon such terms
and conditions as the directors may determine. The Company may only
issue shares, save in respect of bonus shares, that are fully paid on
the date of allotment. The Company may not issue shares which are
unpaid or partially paid on allotment.
GENERAL MEETINGS
35. 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.
36. All general meetings other than annual general meetings shall be called
extraordinary general meetings.
37. The directors may, whenever they think fit, convene an extraordinary
general meeting, and extraordinary general meetings shall also be
convened on such requisition, or in default, may be convened by such
requisitionists, as provided by Section 113 of the Ordinance.
NOTICE OF GENERAL MEETINGS
38. All general meetings of the Company (including annual general meetings
and extraordinary general meetings) shall be called by at least 21
days' notice in writing. The notice shall be exclusive of the day on
which it is served or deemed to be served and of the day for which it
is given, and shall specify the place, the day and the hour of meeting
and, in case of special business, the general nature of that business,
and shall be given, in manner hereinafter mentioned or in such other
manner, if any, as may be prescribed by the Company in general meeting,
to such persons as are, under 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.
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39. The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
40. All business shall be deemed special business (as referred to in Article
38) that is transacted at any extraordinary general meeting, and also
all that is transacted at an annual general meeting, with the exception
of declaring a dividend, the consideration of the accounts, balance
sheets, and the reports of the directors and auditors, the election of
directors in the place of those retiring and the appointment of, and the
fixing of the remuneration of, the auditors.
41. 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
and continues to be present until the conclusion of the meeting; save as
herein otherwise provided, 2 members present in person or by proxy shall
be a quorum.
42. 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; 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 and at such other time and 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.
43. 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 15 minutes after the time
appointed for the holding of the meeting or is unwilling to act or is
absent from Hong Kong or has given notice to the Company of his
intention not to attend the meeting, the directors present shall elect
one of their number to be chairman of the meeting.
44. If at any meeting no director is willing to act as chairman or if no
director is present within 15 minutes after the time appointed for
holding the meeting, the members present shall choose one of their
number to be chairman of the meeting.
45. The chairman may, with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting), adjourn the meeting
from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place. When a
meeting is adjourned for 30 days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting. Save as
aforesaid it shall not be necessary to give any notice of an adjournment
or of the business to be transacted at an adjourned meeting.
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46. At any general meeting a resolution put to the vote of the meeting shall
be decided on a show of hands unless a poll is (before or on the
declaration of the result of the show of hands) demanded:
(a) by the chairman; or
(b) by at least 2 members present in person or by proxy; or
(c) by any member or members present in person or by proxy and
representing not less than one-tenth of the total voting rights
of all the members having the right to vote at the meeting; or
(d) by a member or members holding shares in the Company conferring
a right to vote at the meeting being shares on which an
aggregate sum has been paid up equal to not less than one-tenth
of the total sum paid up on all the shares conferring that
right.
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
book containing the minutes of the proceedings of the Company shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favor of or against such resolution
The demand for a poll may be withdrawn.
47. Except as provided in Article 49, 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 meeting at which the poll
was demanded.
48. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman of the meeting at which the show of hands takes place
or at which the poll is demanded, shall not be entitled to a second or
casting vote.
49. 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 meeting
directs, and any business other than that upon which a poll has been
demanded may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
50. 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 present in
person or by proxy shall have 1 vote, and on a poll every member shall
have 1 vote for each share of which he is the holder.
51. In the case of joint holders 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.
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52. 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 person may, on a poll, vote by proxy.
53. No member shall be entitled to vote at any general meeting unless all
calls or other sums presently payable by him in respect of shares in the
Company have been paid.
54. No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting at which the vote objected to is given
or tendered, and every vote not disallowed at such meeting shall be
valid for all purposes. Any such objection made in due time shall be
referred to the chairman of the meeting, whose decision shall be final
and conclusive.
55. On a poll votes may be given either personally or by proxy.
56. The instrument appointing a proxy shall be in writing under the hand of
the appointer or of his attorney duly authorized in writing, or, if the
appointer is a corporation, either under seal, or under the hand of an
officer or attorney duly authorized. A proxy need not be a member of the
Company.
57. The attorney of any member shall be entitled to vote on a show of hands
or on a poll on behalf of such member in the same manner as the duly
appointed proxy of such member provided that a duly certified copy of
the power of attorney shall have been deposited or handed over in the
same manner and subject to the same time limits as provided for proxies
in the following Article.
58. The instrument appointing a proxy and the power of attorney (if any)
under which it is signed, or a duly certified copy thereof, shall be
deposited at the registered office of the Company or with the Secretary
of the Company before the meeting for which it is to be used or shall be
handed to the Secretary or the chairman of the meeting at which it is to
be used before the person named in such instrument purports to vote in
respect thereof. No instrument appointing a proxy shall be valid after
the expiration of twelve months from the date of its execution.
59. An instrument appointing a proxy shall be in the following form (or a
form as near thereto as circumstances admit) or such other form as the
directors may from time to time determine:
ZINDART LIMITED
( )
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"I/We ______________________, of _____________________________________,
being a member/members of the above named company, hereby appoint
_____________________ of ____________________________________, or
failing him, _____________________________ of ________________, as
my/our proxy to vote for me/us on my/our behalf at the [annual or
extraordinary, as the
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case may be] general meeting of the company to be held on the _____ day
of 19__, and at any adjournment thereof.
Signed this _____ day of ____________, 19__."
60. Where it is desired to afford members an opportunity of voting for or
against a resolution the instrument appointing a proxy shall be in the
following form (or a form as near thereto as circumstances admit) or
such other form as the directors may from time to time determine:
ZINDART LIMITED
( )
---------------
"I/We, ______________________________, of
_______________________________, being a member/members of the above
named company, hereby appoint ___________________________ of
________________________________________, or failing him,
____________________________ of ____________________________, as my/our
proxy to vote for me/us on my/our behalf at the [annual or
extraordinary, as the case may be] general meeting of the Company, to be
held on the _____ day of ____________, 19__, and at any adjournment
thereof.
Signed this _____ day of ____________, 19__.
* in favor of
This form is to be used ________________________ the resolution.
against
Unless otherwise instructed, the proxy will vote as he thinks fit.
*Strike out whichever is not desired."
61. The instrument appointing a proxy shall be deemed to confer authority to
demand or join in demanding a poll.
62. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the
proxy was executed, or the transfer of the share in respect of which the
proxy is given, provided that no intimation in writing of such death,
insanity, revocation or transfer as aforesaid shall have been received
by the Company at the office before the commencement of the meeting or
adjourned meeting at which the proxy is used.
63. A general meeting of the Company may be held by telephonic conference
call attended by such number of members of the Company who would be
entitled to receive notice of and to attend and vote at a general
meeting of the Company that will constitute a necessary quorum of
general meetings, or by their duly appointed proxies or attorneys.
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Resolutions passed at such meeting shall be as valid and effectual as if
it had been duly passed at a general meeting of the Company duly
convened and held and, where relevant, as a special resolution passed.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
64. Any corporation or limited partnership which is a member of the Company
may by resolution of its directors, partners 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 or limited partnership which he
represents as that corporation or limited partnership could exercise if
it were an individual member of the Company.
DIRECTORS
65. (a) The names of the first directors shall be determined in writing
by the subscribers of the Memorandum of Association or a majority
of them.
(b) The number of directors of the Company shall not be less than two
(2) and, unless and until the Company in general meeting shall
otherwise determine, shall not be more than eleven (11). Until
the appointment of the first directors, the subscribers hereto
may exercise all the powers of the directors.
66. (a) At each Annual General Meeting of the Company all the
directors shall retire, but shall be eligible for re-election.
Notwithstanding any other provision of these Articles, the
members may at any time remove directors upon the passing of a
special resolution of the Company.
(b) The directors shall have power at any time, and from time to
time, to appoint any other person as a director of the Company
provided that such appointment shall automatically terminate at
the next following annual general meeting of the Company.
67. The remuneration of the directors shall be as determined from time to
time by the board of directors, provided that a director may not vote on
a resolution in respect of his own remuneration. Such remuneration shall
be deemed to accrue from day to day. The 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.
68. The directors of the Company shall not be required to own any shares of
the Company as a condition of their appointment or continued engagement
as directors.
69. A director of the Company may be or become a director or other officer
of, or otherwise interested in, any company promoted by the Company or
in which the Company may be
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interested as shareholder or otherwise, and, subject to the Ordinance,
no such director shall be accountable to the Company for any
remuneration or other benefits received by him as a director or officer
of, or from his interest in, such other company unless the Company
otherwise direct.
BORROWING POWERS
70. The directors may exercise all the powers of the Company to borrow
money, and to mortgage or charge its undertaking, property and uncalled
capital, or any part thereof, and to issue debentures, debenture stock,
and, subject to Section 57B of the Ordinance, convertible debentures and
convertible debenture stock, and other securities whether outright or as
security for any debt, liability or obligation of the Company or of any
third party.
POWERS AND DUTIES OF DIRECTORS
71. The business of the Company shall be managed by the directors, who may
pay all expenses incurred in promoting and registering the Company, and
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, nevertheless, to any of these Articles, to the
provisions of the Ordinance and to such regulations, being not
inconsistent with the aforesaid Articles or provisions, as may be
prescribed by the Company in general meeting; but no regulation made by
the Company in general meeting shall invalidate any prior act of the
directors which would have been valid if that regulation had not been
made.
72. The directors may from time to time and at any time by power of attorney
appoint any company, firm or person or body of persons, whether
nominated directly or indirectly by the directors, to be the attorney or
attorneys of the Company for such purposes and with such powers,
authorities and discretions (not exceeding.those vested in or
exercisable by the directors under these Articles) and for such period
and subject to such conditions as they may think fit, and any such
powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney as the directors
may think fit and may also authorize any such attorney to delegate all
or any of the powers, authorities and discretions vested in him.
73. The Company may exercise the powers conferred by Section 35 of the
Ordinance with regard to having an official seal for use abroad, and
such powers shall be vested in the directors.
74. The Company may exercise the powers conferred upon the Company by
Sections 103, 104 and 106 of the Ordinance with regard to the keeping of
a branch register, and the directors may (subject to the provisions of
those Sections) make and vary such Articles as they may think fit
respecting the keeping of any such register.
75. (a) 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
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Company's business) with the Company shall, if his interest in
the contract or proposed contract is material, declare the
nature of his interest at a meeting of the directors in
accordance with Section 162 of the Ordinance.
(b) A director may vote in respect of 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
counted in estimating the quorum when any such contract or
arrangement is under consideration.
(c) A director may hold any other office or place of profit under
the 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 and no director or intending director shall be
disqualified by his office from contracting with the Company
either with regard to his tenure of any such other office or
place of profit or as vendor, purchaser or otherwise, nor shall
any such contract, or any contract or arrangement entered into
by or on behalf of the Company in which any 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 realized by any such contract or
arrangement by reason of such director holding that office or of
the fiduciary relation thereby established.
(d) Any 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; provided that nothing herein contained shall authorize
a director or his firm to act as auditor to the Company.
76. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments, and all receipts for moneys paid to the Company,
shall be signed, drawn, accepted, endorsed, or otherwise executed, as
the case may be, in such manner as the directors shall from time to time
by resolution determine.
77. The directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the directors;
(b) of the names of the directors present at each meeting of the
directors and of any committee of the directors;
(c) of all resolutions and proceedings at all meetings of the
Company, and of the directors, and of committees of directors,
and every director present at any meeting of directors or committee of
directors shall sign his name in a book to be kept for that purpose.
78. 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
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the Company or to his widow or dependents and may make contributions to
any fund and pay premiums for the purchase or provision of any such
gratuity, pension or allowance.
DISQUALIFICATION OF DIRECTORS
79. The office of director shall be vacated if the director:
(a) ceases to be a director by virtue of Section 155 of the
Ordinance; or
(b) becomes bankrupt or makes any arrangement or composition with
his creditors generally; or
(c) becomes prohibited from being a director by reason of any order
made under Section 157E or 157F of the Ordinance; or
(d) becomes 6f unsound mind; or
(e) resigns his office by notice in writing to the Company given in
accordance with Section 157D(3)(a) of the Ordinance; or
(f) shall for more than 6 months have been absent without permission
of the directors from meetings of the directors held during that
period.
80. Subject to the provisions of any agreement with the Company, a director
may retire from his office upon giving notice in writing to the Company
of his intention so to do and such resignation shall take effect upon
the expiration of such notice or its earlier acceptance.
PROCEEDINGS OF DIRECTORS
81. The directors may meet together in Hong Kong or elsewhere in the world
for the dispatch of business, adjourn, and otherwise regulate their
meetings, as they think fit. Questions arising at any meeting shall be
decided by a majority of votes. In case of an equality of votes, the
chairman shall not have a second or casting vote. A director may, and
the Secretary on the requisition of a director shall, at any time summon
a meeting of the directors. It shall in all cases be necessary to give
at least seven days notice of any meeting of directors to all directors
whether in Hong Kong or for the time being absent from Hong Kong
provided that a meeting of the directors may be held on shorter notice
if all directors shall agree.
82. The quorum necessary for the transaction of the business of the
directors may be fixed by the directors, and unless so fixed shall be 2.
83. 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 the Articles of the Company 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.
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84. The directors may elect a chairman of their meetings and determine the
period for which he is to hold office; but if no such chairman is
elected, or if at any meeting the chairman is not present within 5
minutes after the time appointed for holding the same, the directors
present may choose one of their number to be chairman of the meeting.
85. The directors may delegate any of their powers to committees consisting
of such member or members of their body as they think fit; any committee
so formed shall in the exercise of the powers so delegated conform to
any regulations that may be imposed on it by the directors.
86. A committee may elect a chairman of its meetings; if no such chairman is
elected, or if at any meeting the chairman is not present within 5
minutes after the time appointed for holding the same, the members
present may choose one of their number to be chairman of the meeting.
87. 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 not
have a second or casting vote.
88. All acts done by any meeting of the directors or of a committee of
directors or by any person acting as a director shall, notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such
person had been duly appointed and was qualified to be a director.
89. A proposed resolution in writing notice of which has been given to all
the directors and consisting of one document or of separate copies
prepared and/or circulated for the purpose, signed by such number of
directors as shall be requisite for the passing of a resolution at a
meeting of the directors, shall be as valid and effective as if it had
been passed at a meeting of the directors duly called and constituted.
90. A meeting of the directors may be held by telephonic conference call
attended by such number of directors (or their alternate directors as
the case may be), who would be entitled to receive notice of and to
attend and vote at a meeting of the directors that will constitute a
necessary quorum for meetings of the directors. Resolutions passed at
such meetings shall be as valid and effectual as if it had been duly
approved at a meeting of the directors duly convened and held.
EXECUTIVE OFFICERS
91. The directors may from time to time appoint one or more of their body to
the office of Chairman of the board of directors, or any person to the
office of president, vice president, chief executive officer or such
other office for such period and on such terms as they think fit, and,
subject to the terms of any agreement entered into in any particular
case, may revoke such appointment. His appointment shall automatically
determine if he ceases from any cause to be a director.
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92. An officer appointed pursuant to Article 91 shall receive such
remuneration (whether by way of salary, commission or participation in
profits, or partly in one way and partly in another) as the directors
may determine.
93. The directors may entrust to and confer upon an officer appointed under
Article 91 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.
SECRETARY
94. The Secretary shall be appointed by the directors for such term, at such
remuneration and upon such conditions as they may think fit; and any
secretary so appointed may be removed by them.
95. A provision of the Ordinance or these Articles 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.
THE SEAL
96. The directors shall provide for the safe custody of the seal, which
shall only be used by the authority of the directors or of a committee
of the directors authorized by the directors in that behalf, and every
instrument to which the seal shall be affixed shall be signed by a
director and shall be counter-signed by the Secretary or by a second
director or by some other person appointed by the directors for the
purpose.
DIVIDENDS AND RESERVE
97. The Company in general meeting may declare dividends, but no dividend
shall exceed the amount recommended by the directors.
98. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of
the Company.
99. No dividend shall be paid otherwise than out of profits.
100. 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.
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101. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividend, all dividends shall be declared and paid
according to the amounts paid or credited as paid on the shares in
respect whereof the dividend is paid, but no amount paid or credited as
paid on a share in advance of calls shall be treated for the purposes of
this Article as paid on the share. All dividends shall be apportioned
and paid proportionately to the amounts paid or credited as paid on the
shares during any portion or portions of the period in respect of which
the dividend is paid; but if any share is issued on terms providing that
it shall rank for dividend as from a particular date such share shall
rank for dividend accordingly.
102. The directors may deduct from any dividend payable to any member all
sums of money (if any) presently payable by him to the Company on
account of calls or otherwise in relation to the shares of the Company.
103. Any general meeting declaring a dividend or bonus may direct payment of
such dividend or bonus 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 the
directors shall give effect to such resolution, 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 parties, and may vest any such specific assets in
trustees as may seem expedient to the directors.
104. Any dividend, bonus, interest or other moneys 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 registered address of that one of the joint
holders who is first named on the register of members or to such person
and to such address as the 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 2 or more joint holders may
give effectual receipts for any dividends, bonuses, interest or other
moneys payable in respect of the shares held by them as joint holders.
105. No dividend shall bear interest against the Company.
106. All dividends or bonuses unclaimed for one year after having been
declared may be invested or otherwise made use of by the board for the
benefit of the Company until claimed and the Company shall not be
constituted a trustee in respect thereof. All dividends or bonuses
unclaimed for six years after having been declared may be forfeited by
the board and shall revert to the Company.
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ACCOUNTS
107. 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 and expenditure takes
place;
(b) all sales and purchases of goods by the Company; and
(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.
108. The books of account shall be kept at the registered office of the
Company, or, subject to Section 121(3) of the Ordinance, at such other
place or places as the directors think fit, and shall always be open to
the inspection of the directors.
109. 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
authorized by the directors or by the Company in general meeting.
110. The directors shall from time to time, in accordance with Sections 122,
124 and 129D 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 referred to
in those Sections.
111. 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 21 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 or to
more than one of the joint holders of any shares or debentures.
CAPITALIZATION OF PROFITS
112. The Company in general meeting may upon the recommendation of the
directors resolve that it is desirable to capitalize any part of the
amount for the time being standing to the credit of any of the Company's
reserve accounts or to the credit of the profit and loss
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account or otherwise available for distribution, and accordingly that
such sum 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 of the Company to be allotted and
distributed credited as fully paid up to and amongst such members in the
proportion aforesaid, or partly in the 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 allotted to members of the Company as
fully paid bonus shares.
113. 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 capitalized 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, with full
power to the directors to make such provision by the issue of fractional
certificates or by payment in cash or otherwise as they think fit for
the case of shares or debentures becoming distributable in fractions,
and also to authorize any person to enter on behalf of all the members
entitled thereto into an agreement with the Company providing for the
allotment to them respectively, credited as fully paid up, of any
further shares or debentures to which they may be entitled upon such
capitalization, or (as the case may require) for the payment up by the
Company on their behalf, by the application thereto of their respective
proportions of the profits resolved to be capitalized, of the amounts or
any part of the amounts remaining unpaid on their existing shares, and
any agreement made under such authority shall be effective and binding
on all such members.
AUDIT
114. Auditors shall be appointed and their duties regulated in accordance
with Sections 131, 132, 133, 140, 140A, 140B and 141 of the Ordinance.
NOTICES
115. Every member and director shall register with the Company an address
either in Hong Kong or elsewhere to which notices can be delivered or
sent and if any member or director shall fail so to do notice may be
given to such member or director by delivering or sending the same in
any of the manners hereinafter mentioned to his last known place of
business or residence or, if there be none, by posting up a notice in
the registered office of the Company (in which case such notice shall be
deemed to be duly served at the expiration of 24 hours after it is so
posted up).
116. A notice may be given either by personal delivery or by sending it by
prepaid post (airmail in the case of a registered address outside Hong
Kong), cable, telex or telefax.
117. (a) A notice shall be deemed served:
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(i) he case of personal delivery at the time of delivery;
(ii) in the case of prepaid post to an address in Hong Kong
on the second day following its posting;
(iii) in the case of prepaid post to an address outside Hong
Kong on the seventh day following its posting;
(iv) in the case of cable, telex or telefax on the day
following dispatch of the cable or telex message.
(b) In the case of a notice sent by prepaid post, in proving service
thereof it shall be sufficient to prove that the envelope or
wrapper containing the notice was properly addressed and stamped
and was deposited in a post box or-at post office.
118. A notice may be given by the Company to the joint holders of a share by
giving the notice to the joint holder first named in the register of
members in respect of the share.
119. 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, supplied
for the purpose by the persons claiming to be so entitled, or (until
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.
120. Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every member except those members who have not supplied to the
Company an address 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 auditor for the time being of the Company.
No other person shall be entitled to receive notices of general
meetings.
WINDING UP
121. 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 or different classes of members. The liquidator may, with the
like sanction,
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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
122. Subject to the provisions of the Ordinance but without prejudice to any
indemnity to which a director may otherwise be entitled, the Company may
by resolution of the board of directors, resolve to indemnify any
director or other officer or auditor of the Company out of the assets of
the Company against any liability incurred by him in the performance of
his duties, or in defending any proceedings, whether civil or criminal,
in which judgment is given in his favor or in which he is acquitted,
provided that no such indemnity shall apply in respect of liability for
negligence, default, breach of duty or breach of trust in relation to
the affairs of the Company unless relief is granted by the Court in
respect thereof pursuant to Section 358 of the Ordinance. The Company
may charge its assets in favor of a director, officer or auditor to
secure permitted indemnities referred to herein.
22.