THE COMPANIES LAW
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
TRITON ENERGY LIMITED
(ADOPTED BY SPECIAL RESOLUTION OF THE
MEMBERS EFFECTIVE MARCH 25, 1996)
I. INTERPRETATION
1.1 The Regulations or Articles contained or incorporated in
Table 'A' in the First Schedule to the Statute shall not apply to this Company
and the following Articles shall comprise the Articles of Association of the
Company. Unless there be something in the subject or context inconsistent
therewith,
"Articles" means these Articles of Association as originally framed
or as from time to time altered by Special Resolution.
"Board of Directors" means the full board, comprised of Directors
holding office from time to time.
"The Company" means Triton Energy Limited. Where agreement, consent
or other action of the Company is provided for herein, such action shall not
require approval of the Company's Members, except as expressly required by the
Statute or these Articles.
"Directors" means the directors for the time being of the Company.
"Dividend" includes bonus.
"holder" in relation to any shares means the member whose name is
entered in the Register as the holder of such shares.
"Member" shall bear the meaning ascribed to it in Section 37 of the
Statute.
"Memorandum" means the memorandum of association of the Company, as
the same may be amended from time to time.
"Month" means calendar month.
"Ordinary Resolution" has the same meaning as in the Statute.
"Ordinary Shares" has the meaning ascribed to it in Article III.
"Paid-up" means paid-up and/or credited as paid-up.
"Register" means the Register of Members of the Company as
maintained in accordance with Section 39 of the Statute.
"Registered Office" means the registered office for the time being
of the Company.
"seal" means the common seal of the Company and includes every
official seal.
"Secretary" means the secretary of the Company and includes an
Assistant Secretary and any person appointed to perform the duties of
Secretary of the Company.
"shares" means any Ordinary Shares or other shares issued in the
capital of the Company.
"Special Resolution" has the same meaning as in the Statute.
"Statute" means the Companies Law (1995 Revision) of the Cayman
Islands as amended and every statutory modification or re-enactment thereof
for the time being in force.
"stock dividend" means a distribution of shares in lieu of payment
of a dividend in cash.
"TEC" means Triton Energy Corporation, a Delaware corporation.
"written" and "in writing" includes all modes of representing or
reproducing words in visible form.
Words importing the singular number shall also include the plural
number and vice-versa.
Words importing the masculine gender shall also include the feminine
gender.
Words importing persons shall also include corporations,
partnerships, trusts and other entities.
II. CERTIFICATES FOR SHARES
2.1 Certificates representing shares of the Company shall be in
such form and may bear such legends (reflecting or referring to the terms of
issue of the shares thereby represented, or any of these Articles or other
relevant matters) as shall be determined by the Board of Directors. Such
certificates shall be under seal signed by the Chairman of the Board, the
President or any Vice President of the Company and countersigned by the
Secretary or another authorized person. Where a certificate is signed (1) by
a transfer agent or (2) by a transfer clerk acting on behalf of the Company
and a registrar, the signatures of any such Chairman of the Board, President,
Vice President or Secretary may be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer
or officers of the Company, whether because of death, resignation or
otherwise, before such certificate or certificates have been delivered by the
Company, such certificate or certificates may nevertheless be adopted by the
Company and be validly issued and delivered as though the person or persons
who signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or
officers of the Company. Certificates for shares shall be in such form as
shall be in conformity to law or as may be prescribed from time to time by the
Board of Directors. All certificates for shares shall be consecutively
numbered or otherwise identified and shall specify the shares to which they
relate. The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue and whether
fully paid, or deemed fully paid or partly paid, shall be entered in the
register of Members of the Company. All certificates surrendered to the
Company for transfer shall be cancelled and no new certificate shall be issued
until the former certificate for a like number of shares has been surrendered
and cancelled. Certificates may be issued with the seal and authorized
signatures affixed by some method or system of mechanical process.
2.2 The Company shall maintain a register of its Members and
every person whose name is entered as a Member in the register of Members
shall be entitled without payment to receive within two (2) months after
allotment or lodgment of transfer (or within such other period as the
conditions of issue shall provide) one certificate for all his shares or
several certificates each for one or more of his shares provided that in
respect of a share or shares held jointly by several persons the Company shall
not be bound to issue more than one certificate and delivery of a certificate
for a share to one of the several joint holders shall be sufficient delivery
to all such holders.
2.3 Notwithstanding Section 2.1 of these Articles, if a share
certificate be defaced, lost or destroyed, it may be renewed on such terms (if
any) as to evidence and indemnity and the payment of the expenses incurred
by the Company in investigating evidence, as the Board of Directors or any
officer of the Company may prescribe.
III. ISSUE OF SHARES
3.1 The authorized share capital of the Company shall be U.S.
$2,200,000 represented by (i) 200,000,000 Ordinary Shares, par value US$.01
per share (the "Ordinary Shares"), with the respective rights as set forth in
Article IV below, and (ii) other classes or series of shares with the
respective rights to be determined upon the creation thereof by action of the
Board of Directors from time to time as set forth in Article V below.
IV. ORDINARY SHARES
4.1 Subject to the provisions of these Articles, all unissued
shares for the time being in the capital of the Company shall be at the
disposal of the Board of Directors, and the Board of Directors may (subject as
aforesaid) allot, grant options over, or otherwise dispose of them to such
persons, on such terms and conditions, and at such times as they deem proper.
4.2 Dividends to be satisfied by distributions of property other
than cash will be made or paid (as the case may be) on the same basis (in all
material respects) to holders of Ordinary Shares.
4.3 No holder of Ordinary Shares or any other shares of the
Company (unless otherwise expressly agreed to by the Company) shall, by reason
of such holding, have any preemptive or preferential right to subscribe to or
purchase any shares of any class or series of any shares of the Company, now
or hereafter to be authorized, or any notes, debentures, bonds or other
securities, whether or not the issuance of any such shares, notes, debentures,
bonds or other securities would adversely affect the dividend, voting or any
other rights of such holder.
4.4 In the event of any conflict, the provisions of this Article
IV shall override the provisions of any other Article of these presents.
4.5 The Board of Directors may allot, issue or grant any option,
right, warrant or other security exercisable for, convertible into, or
exchangeable for, or otherwise dispose of, any shares or securities of the
Company at such times and on such terms as it deems proper. Upon approval of
the Board of Directors, such number of Ordinary Shares, or other shares or
securities of the Company, as may be required for such purpose shall be
reserved for issuance in connection with any option, right, warrant or other
security of the Company or any other person that is exercisable for,
convertible into, exchangeable for or otherwise issuable in respect of such
Ordinary Shares or other shares or securities of the Company. Notwithstanding
the generality of the foregoing, the Board of Directors is expressly
authorized and empowered to implement or effect at its sole discretion the
issuance of a preferred share purchase right to be attached to each
outstanding Ordinary Share with such terms and for such purposes, including
the influencing of takeovers, as may be described in a rights agreement
between the Company and a rights agent.
4.6 Unless otherwise specified by the Board of Directors, any
shares which have been called, redeemed or otherwise repurchased by the
Company shall have the status of authorized but unissued shares and may be
subsequently issued in accordance with the Memorandum and these Articles.
4.7 The Board of Directors shall have the fullest powers
permitted by law to pay all or any redemption monies in respect of any shares
out of the Company's share capital and share premium account.
V. OTHER CLASSES OR SERIES OF SHARES
5.1 The Board of Directors is authorized without obtaining any
vote or consent of the holders of any class or series of shares of the Company
unless expressly provided by the terms of issue of such class or series,
subject to any limitations prescribed by law, to provide from time to time for
the issuance of other classes or series of Shares, and in accordance with
applicable procedures of the Statute, to establish the characteristics of each
class or series including, without limitation, the following:
(a) the number of shares of that class or series, which may
subsequently be increased or decreased (but not below the number of shares of
that class or series then outstanding) by resolution of the Board of
Directors, and the distinctive designation thereof,
(b) the voting powers, full or limited, if any, of the shares of
that class or series, including without limitation, the authority to confer
multiple votes per share, voting rights as to specified matters or issues such
as mergers, consolidations or sales of assets, or voting rights to be
exercised either together with holders of Ordinary Shares as a single class,
or independently as a separate class;
(c) the rights in respect of dividends, if any, on the shares of
that class or series; the rate at which such dividends shall be payable and/or
cumulate, which rate may be determined on factors external to the Company and
which dividends may be payable in cash, shares of capital or other securities
or property of the Company; whether dividends shall be cumulative and, if so,
from which date or dates; the relative rights or priority, if any, of payment
of dividends on shares of that class or series; and any limitation,
restrictions or conditions on the payment of dividends;
(d) the relative amounts, and the relative rights or priority,
if any, of payment in respect of shares of that class or series, which the
holder of the shares of that class or series shall be entitled to receive upon
any liquidation, dissolution or winding up of the Company;
(e) any redemption, repurchase, retirement and sinking fund
rights, preferences and limitations of that class or series, the amount
payable on shares of that class or series in the event of such redemption,
repurchase or retirement, the terms and conditions of any sinking fund, the
manner of creating such fund or funds and whether any of the foregoing shall
be cumulative or non-cumulative;
(f) the terms, if any, upon which the shares of that class or
series shall be convertible into or exchangeable for shares of any other
classes, or series, or other securities, whether or not issued by the Company;
(g) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class or
series are outstanding; and
(h) any other preferences and relative, participating, optional
or other rights and limitations not inconsistent with applicable law or the
provisions of this Article V.
VI. VARIATION OF RIGHTS OF SHARES
6.1 (a) If at any time the share capital of the Company is divided
into different classes or series of shares, the rights attached to any class
or series (unless otherwise provided by the terms of issue of the shares of
that class) may, whether or not the Company is being wound-up, be varied with
the consent in writing of the holders of all of the issued shares of that
class or series, or with the sanction of a Special Resolution passed at a
general meeting with the holders of the shares of that class or series voting
separately as a class.
(b) The provisions of these Articles relating to separate
general meetings shall apply to every such general meeting of the holders of
one class or series of shares.
(c) Class or series meetings and class or series votes may only
be called at the direction of the Board of Directors or the President (unless
otherwise expressly provided by the terms of issue of the shares of that class
or series). Nothing in this Article VI gives any Member or group of Members
the right to call a class or series meeting or demand a class or series vote.
6.2 The rights conferred upon the holders of the shares of any
class or series issued with preferred or other rights shall not, unless
otherwise expressly provided by the terms of issue of the shares of that class
or series, be deemed to be varied by the creation or issue of further shares
ranking in any respect prior to or pari passu therewith. The rights of the
holders of Ordinary Shares shall not be deemed to be varied by the creation or
issue of shares with preferred or other rights, which may be effected by the
Board of Directors as provided in these Articles without any vote or consent
of the holders of Ordinary Shares.
VII. REDEMPTION
7.1 Except as provided in this Article VII, the Ordinary Shares
are not redeemable by the Company. Subject as set out herein, any issued and
outstanding Ordinary Shares shall be redeemable in such circumstances and on
such terms as shall be agreed by the Company and the holder thereof, subject
always to the laws of the Cayman Islands, and the Company may deduct from the
redemption price for such shares the aggregate amount of any outstanding
debts, liabilities and engagements to or with the Company (whether presently
payable or not) by the holder of such shares, either alone or jointly with any
other person, whether a Member or not. Without limiting the foregoing, the
Company may, from time to time, upon the agreement of a Member, purchase or
redeem all or part of the Ordinary Shares of any such Member, whether or not
the Company has made a similar offer to all or any of the other Members.
VIII. TRANSFER OF SHARES
8.1 Upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and otherwise
meeting all legal requirements for transfer, it shall be the duty of the
Company to issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books. Transfers of
shares shall be made only on the books of the Company by the registered holder
thereof, or by such holders attorney thereunto authorized by power of attorney
and filed with the Secretary of the Company or the transfer agent. The
Company shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to
vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
8.2 The holder of any redeemable shares for which the Company has
issued a notice of redemption in accordance with these Articles may not
transfer such shares, whether or not the Company has yet paid the redemption
price to the Member unless otherwise provided (i) by the terms of such shares
or (ii) the Board of Directors in connection with the redemption of such
shares.
IX. NON-RECOGNITION OF TRUSTS
9.1 The Company shall not be required to recognize any person 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 is otherwise
provided by these Articles or the Statute) any other rights in respect of any
share except an absolute right to the entirety thereof in the registered
holder.
X. LIEN ON SHARES
10.1 The Company shall have a first and paramount lien and
charge on all shares (not being a fully paid share) registered in the name of
a Member (whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by such
Member or his estate, either alone or jointly with any other person, whether a
Member or not, but the Board of Directors may at any time declare any share to
be wholly or in part exempt from the provisions of this Article X. The
registration of a transfer of any such share shall operate as a waiver of the
Company's lien (if any) thereon. The Company's lien (if any) on a share shall
extend to all dividends, redemptions or other monies payable in respect
thereof.
10.2 The Company may sell, in such manner as the Board of
Directors deems fit, any shares on which the Company has a lien, except as set
forth in this Article X. Unless otherwise permitted in the instrument
creating such lien, no such sale shall be made unless a sum in respect of
which the lien exists is presently payable. Unless otherwise permitted in the
instrument creating such lien, no such sale shall be made until the expiration
of fourteen (14) days after a notice in writing stating and demanding payment
of such part of the amount in respect of which the lien exists as is presently
payable, has been given to the registered holder or holders for the time being
of the shares, or the person, of which the Company has notice, entitled
thereto by reason of his death or bankruptcy.
10.3 To give effect to any such sale the Board of Directors may
authorize some person to transfer the shares sold to the purchaser thereof.
The purchaser shall be registered as the holder of the shares comprised in any
such transfer, and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
10.4 The proceeds of such share shall be received by the Company
and applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject to a
like lien for sums not presently payable as existed upon the shares before the
sale) be paid to the person entitled to the shares at the date of the sale.
XI. CALL ON SHARES
11.1 (a) The Board of Directors may from time to time make
calls upon the Members in respect of any monies unpaid on their shares
(whether on account of the nominal value of the shares or by way of premium or
otherwise) and not by the conditions of allotment thereof made payable at
fixed terms; and each Member shall, subject to receiving at least fourteen
(14) days notice (or some shorter period of notice as may have been authorized
by the terms on issue of the shares) specifying the time or times of payment,
pay to the Company at the time or times so specified the amount called on the
shares. A call may be revoked or postponed as the Board of Directors may
determine. A call may be made payable by installments.
(b) A call shall be deemed to have been made at the time when
the resolution of the Board of Directors authorizing such call was passed
unless otherwise provided by the Board of Directors.
(c) The joint holders of a share shall be jointly and severally
liable to pay all calls in respect thereof.
11.2 If a sum called in respect of a share is not paid before or
on a day appointed for payment thereof, the persons from whom the sum is due
shall pay interest on the sum from the day appointed for payment thereof to
the time of actual payment at such rate not exceeding ten percent (10%) per
annum as the Board of Directors may determine, but the Board of Directors
shall be at liberty to waive payment of such interest either wholly or in
part.
11.3 Any sum which by the terms of a share becomes payable on
allotment or at any fixed date, whether on account of the non-final value of
the share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a call duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest, forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
11.4 The Board of Directors may, on the issue of shares,
differentiate between the holders as to the amount of calls or interest to be
paid and the times of payment.
11.5 (a) The Board of Directors may, if it thinks fit,
receive from any Member willing to advance the same, all or any part of the
monies uncalled and unpaid upon any shares held by him, and upon all or any of
the monies so advanced may (until the same would but for such advances, become
payable) pay interest at such rate as may be agreed upon between the Company
and the Member paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the
Member paying such sum to any portion of a dividend declared in respect of any
period prior to the date upon which such sum would, but for such payment,
become presently payable.
XII. FORFEITURE OF SHARES
12.1 (a) If a Member fails to pay any call or installment of
a call or to make any payment required by the terms of issue on the day
appointed for payment thereof, the Board of Directors may, at any time
thereafter during such time as any part of the call, installment or payment
remains unpaid, give notice requiring of so much of the call, installment or
payment as is unpaid, together with any interest which may have accrued and
all expenses that have been incurred by the Company by reason of such
non-payment. Such notice shall name a day (not earlier than the expiration of
fourteen (14) days from the date of giving of the notice) on or before which
the payment required by the notice is to be made, and shall state that, in the
event of non-payment at or before the time appointed the shares in respect of
which such notice was given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been given may at
any time thereafter, before the payment required by the notice has been made,
be forfeited by a resolution of the Board of Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the forfeited
share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on
such terms and in such manner as the Board of Directors deems fit and at any
time before a sale or disposition the forfeiture may be cancelled on such
terms as the Board of Directors thinks fit.
12.2 A person whose shares have been forfeited shall cease to be
a Member in respect of the forfeited shares, but shall, notwithstanding,
remain liable to pay to the Company all monies which, at the date of
forfeiture were payable by him to the Company in respect of the shares
together with interest thereon, but his liability shall cease if and when the
Company shall have received payment in full of all monies whenever payable in
respect of the shares.
12.3 A certificate in writing under the hand of the President or
any Vice President and the Secretary of the Company that a share in the
Company has been duly forfeited on a date stated in the declaration shall be
conclusive evidence of the fact therein stated as against all persons claiming
to be entitled to the share. The Company may receive the consideration given
for the share on any sale or disposition thereof and may execute a transfer of
the share in favor of the person to whom the share is sold or disposed of and
he shall thereupon be registered as the holder of the share and shall not be
bound to see to the application of the purchase money, if any, nor shall his
title to the share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of the share.
12.4 The provisions of these Articles as to forfeiture shall
apply in the case of non-payment of any sum which, by the terms of issue of a
share, becomes payable at a fixed time, whether on account of the nominal
value of the share or by way of premium as if the same had been payable by
virtue of a call duly made and notified.
XIII. TRANSMISSION OF SHARES
13.1 In case of the death of a Member who is a natural person,
the survivor or survivors where the deceased was a joint holder, and the legal
personal representatives of the deceased where he was 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 any
such deceased holder from any liability in respect of any shares which had
been held by him solely or jointly with other persons.
13.2 (a) Any person becoming entitled to a share in
consequence of the death or bankruptcy of a Member (or in any other way than
by transfer) may, upon such evidence being produced as may from time to time
be required by the Board of Directors and subject as hereinafter provided,
elect either to be registered himself as holder of the share or to make such
transfer of the share to such other person nominated by him as the deceased or
bankrupt person could have made and to have such person registered as the
transferee thereof, but the Board of Directors shall, in either case, have the
same right to decline or suspend registration as they would have had in the
case of a transfer of the share by that Member before his death or bankruptcy
as the case may be.
(b) If the person so becoming entitled shall elect to be
registered himself as holder he shall deliver or send to the Company a notice
in writing signed by him stating that he so elects.
13.3 A person becoming entitled to a share by reason of the
death or bankruptcy of the holder (or in any other case than by transfer)
shall be entitled to the same dividends and other advantages to which he would
be entitled if he were the registered holder of the share, except that he
shall not, before being registered as a Member in respect of the share, be
entitled in respect of it to exercise any right conferred by membership in
relation to meetings of the Company; provided, however, that the Board of
Directors may at any time give notice requiring any such person to elect
either to be registered himself or to transfer the share and if the notice is
not complied with within ninety (90) days the Board of Directors may
thereafter withhold payment of all dividends, bonuses or other monies payable
in respect of the share until the requirements of the notice have been
complied with.
XIV. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OR REGISTERED OFFICE & ALTERATION OF CAPITAL
14.1 (a) Subject to and insofar as permitted by the
provisions of the Statute, the Company may from time to time by Special
Resolution alter or amend the Memorandum and may, without restricting the
generality of the foregoing:
(i) increase the share capital by such sum to be divided
into shares of such amount or without nominal or par value as the resolution
shall prescribe;
(ii) consolidate all or any of its share capital into
shares of larger amount than its existing shares;
(iii) by subdivision for its existing shares or any of them
divide the whole or any part of its share capital into shares of smaller
amount than is fixed by the Memorandum;
(iv) cancel any shares which at the date of the passing of
the resolution have not been taken or agreed to be taken by any person.
(b) All new shares created hereunder shall be subject to the
same provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution reduce its share capital or any capital redemption reserve
fund.
14.2 Subject to the provisions of the Statute, the Company may by
Special Resolution change its name or alter its objects.
14.3 Subject to the provisions of the Statute, the Company may by
resolution of the Board of Directors change the location of its registered
office.
XV. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
15.1 For the purpose of determining Members entitled to notice
of or to vote at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any dividend, or in order to make the
determination of Members for any other proper purpose, the Board of Directors
of the Company may provide that the register of Members shall be closed for
transfers for a stated period but not to exceed in any case forty (40) days.
If the register of Members shall be so closed for the purpose of determining
Members entitled to notice of or to vote at a meeting of Members such register
shall be so closed for at least ten (10) days immediately preceding such
meeting and the record date for such determination shall be the date of the
closure of the register of Members.
15.2 In lieu of or apart from closing the register of Members,
the Board of Directors may fix in advance a date as the record date for any
such determination of Members entitled to notice of or to vote at a meeting of
the Members, and for the purpose of determining the Members entitled to
receive payment of any dividend, the Board of Directors may, at or within
ninety (90) days prior to the date of declaration of such dividend, fix a
subsequent date no later than the date of declaration as the record date for
such determination.
15.3 If the register of Members is not so closed and no record
date is fixed for the determination of Members entitled to notice of or to
vote at a meeting of Members or Members entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination
of Members. When a determination for Members entitled to vote at any meeting
of Members has been made as provided in this section, such determination shall
apply to any adjournment thereof.
XVI. VOTING.
16.1 Subject to the remaining provisions of these Articles, at
each election for Directors at a General Meeting, each holder of an Ordinary
Share entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are Directors to be elected and for whose election he has a right to
vote. Cumulative voting, for the election of Directors or otherwise, is
expressly prohibited. Election of Directors need not be by ballot. On all
matters coming before the Members, other than the election of Directors, each
issued and outstanding Ordinary Share shall be entitled to one (1) vote.
XVII. GENERAL MEETING
17.1 (a) The Company shall in each year of its existence hold a
general meeting as its annual general meeting. The annual general meeting
shall be held at such time and place as the Board of Directors shall appoint.
(b) At each annual general meeting, the Directors to be elected
at that meeting shall be elected for the applicable term or until their
respective successors have been elected and have qualified.
17.2 (a) Except as otherwise required by law, and subject to
the terms for any class or series of shares issued by the Company having a
preference over the Ordinary Shares as to dividends or upon liquidation to
elect directors in specified circumstances, extraordinary general meetings of
the Members of the Company may be called only by (i) the President of the
Company or (ii) the Board of Directors.
(b) Any action required or permitted to be taken by the Members
of the Company must be taken at a duly called annual or extraordinary general
meeting of the Members of the Company and may not be taken by consent in
writing or otherwise except by consent in writing signed by all Members having
a right to vote with respect to such action.
(c) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares generally entitled to
vote, voting together as a single class, shall be required to amend or repeal,
or adopt any provision inconsistent with, this Section 17.2.
XVIII. NOTICE OF GENERAL MEETINGS
18.1 Written notice of each meeting of the Members stating the
place, date and time of the meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting, to each Member
entitled to vote at such meeting. The notice of any extraordinary meeting of
Members shall state the purpose or purposes for which the meeting is called.
Business transacted at any extraordinary meeting shall be limited to the
purposes stated in the notice.
18.2 The accidental omission to give notice of a general meeting
to, or the non-receipt of notice of a meeting by, any person entitled to
receive notice shall not invalidate the proceedings of that meeting.
XIX. PROCEEDINGS AT GENERAL MEETINGS
19.1 (a) No business shall be transacted at any general
meeting unless a quorum of Members is present at the time when the meeting
proceeds to business. One or more Members present in person or by proxy
holding at least a majority of the issued and outstanding shares of the
Company entitled to vote at such meeting shall be a quorum. The Members
present at a duly constituted general meeting may continue to transact
business until adjournment, despite the withdrawal of enough stockholders to
leave less than a quorum.
(b) An Ordinary Resolution shall require the vote of a majority
of such shares as, being entitled to do so, vote in person or by proxy at any
general meeting at which the required quorum is present in person or by proxy,
voting together as a single class; provided that whenever Directors are to be
elected at a general meeting, they shall be elected by a plurality of the
votes cast in person or by proxy at the general meeting by the holders of
shares entitled to vote.
19.2 (a) Subject to the rights of holders of any class or
series having a preference over the Ordinary Shares as to dividends or upon
liquidation, if a Member desires to nominate persons for election as Directors
at any general meeting duly called for the election of Directors, written
notice of such Member's intent to make such a nomination must be given and
received by the Secretary of the Company at the principal executive offices of
the Company not later than (i) with respect to an annual general meeting of
Members, ninety (90) days in advance of such annual general meeting, and (ii)
with respect to an extraordinary general meeting, the close of business on the
seventh (7th) day following the date on which notice of such meeting is first
sent or given to Members. Each notice shall set forth (i) the name and
address, as it appears on the books of the Company, of the Member who intends
to make the nomination and of the person or persons to be nominated; (ii) a
representation that the Member is a holder of record of shares of the Company
entitled to vote at such meeting and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice;
(iii) the class and number of shares of the Company which are beneficially
owned by the Member; (iv) a description of all arrangements or understandings
between the Member and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the Member; (v) such other information regarding each nominee
proposed by such Member as would be required to be included in a proxy
statement filed pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended from time to time, of the United States of America,
whether or not the Company is then subject to such Regulation; and (vi) the
consent of each nominee to serve as a Director of the Company, if so elected.
The Chairman of the annual general meeting or extraordinary general meeting
shall, if the facts warrant, refuse to acknowledge a nomination not made in
compliance with the foregoing procedure, and any such nomination not properly
brought before the meeting shall not be considered.
(b) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares entitled to vote,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, this Section 19.2.
19.3 The Chairman, if any, of the Board of Directors, or any
Director designated by him, shall preside as Chairman at every general meeting
of the Company, or if there is no such Chairman, or if he or such designee
shall not be present within one (1) hour after the time appointed for the
holding of the meeting, or is unwilling to act, the Directors present shall
elect one of their number to be Chairman of the meeting.
19.4 If at any general meeting no Director is willing to act as
Chairman or if no Director is present within one (1) hour after the time
appointed for holding the meeting, the Members present shall choose one of
their number to be Chairman of the meeting.
19.5 The Chairman may, with the consent of any general meeting
duly constituted hereunder, adjourn the meeting from time to time and from
place to place, but no business shall be transacted at any adjourned meeting
other than the business left unfinished at the meeting from which the
adjournment took place. When a general meeting is adjourned for thirty (30)
days or more, notice of the adjourned meeting shall be given as in the case of
an original meeting; save as aforesaid it shall not be necessary to give any
notice of an adjournment or of the business to be transacted at an adjourned
general meeting.
19.6 At any general meeting a resolution put to the vote at the
meeting shall be decided on a poll taken in such manner as the Chairman
directs.
19.7 Subject to the rights of holders of any class or series
having a preference over the Ordinary Shares, every Member of record present
in person or by proxy shall have one vote for each issued and outstanding
Ordinary Share registered in his name in the Register.
19.8 In the case of joint holders of record the vote of the
senior who tenders a vote, whether in person or by proxy, shall be accepted to
the exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of Members.
19.9 A Member of unsound mind, or in respect of whom an order
has been made by any court, having jurisdiction in lunacy, may vote, whether
on a show of hands or on a poll, by his committee, receiver, curator bonis, or
other person in the nature of a committee, receiver or curator bonis appointed
by that court, and any such committee, receiver, curator bonis or other
persons may vote by proxy.
19.10 No Member shall be entitled to vote at any general meeting
unless he is registered as a Member of the Company on the record date for such
meeting or holds a valid proxy of such a Member or unless all calls or other
sums presently payable in respect of the shares to be voted have been paid.
19.11 Votes may be given either personally or by proxy.
XX. PROXIES
20.1 The instrument appointing a proxy shall be in writing and
shall be executed under the hand of the appointor or of his attorney duly
authorized in writing, or, if the appointor is a corporation under the hand of
an officer or attorney duly authorized in that behalf. A proxy need not be a
Member of the Company.
20.2 The instrument appointing a proxy shall be deposited at the
Registered Office of the Company or at such other place as is specified for
that purpose in the notice convening the meeting no later than the time for
holding the meeting, or adjourned meeting provided that the Chairman of the
meeting may at his discretion direct that an instrument of proxy shall be
deemed to have been duly deposited upon receipt of facsimile transmission of
the signed proxy or upon receipt of telex or cable confirmation from the
appointor that the instrument of proxy duly signed is in the course of
transmission to the Company.
20.3 The instrument appointing a proxy may be in any usual or
common form and may be expressed to be for a particular meeting or any
adjournment thereof or generally revoked.
20.4 A vote given in accordance with the term of an instrument
of proxy shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the proxy
was executed, or the transfer of the share in respect of which the proxy is
given provided that no intimation in writing of such death, insanity,
revocation or transfer as aforesaid shall have been received by the Company at
the office before the commencement of the general meeting, or adjourned
meeting at which it is sought to use the proxy.
20.5 Any corporation which is a Member of record of the Company
may in accordance with its Articles or other governing documents or in the
absence of such provision by resolution of its board of 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 the corporation
could exercise if it were an individual Member of record of the Company.
XXI. DIRECTORS
21.1 (a) There shall be a Board of Directors appointed by a
plurality of the Members consisting of not less than three (3) nor more than
fifteen (15) persons. The Board of Directors shall have the exclusive power
and right to set the exact number of Directors within that range from time to
time by resolution adopted by the vote of a majority of the whole Board of
Directors.
(b) The Directors shall be divided into three classes,
designated by Class I, Class II and Class III. At the 1996 annual general
meeting of Members, Class I Directors shall be elected for a term expiring at
the 1999 annual general meeting of Members, at the 1997 annual general meeting
of Members, Class II Directors shall be elected for a term expiring at the
2000 annual general meeting and at the 1998 annual general meeting of Members,
Class III Directors shall be elected for a term expiring at the 2001 annual
general meeting of Members. At each succeeding annual general meeting of
Members, successors to Directors whose terms expire at that annual general
meeting shall be of the same class as the Directors they succeed and shall be
elected for three-year terms.
(c) If the number of Directors is decreased by resolution of the
Board of Directors pursuant to this Section 21.1, in no case shall that
decrease shorten the term of any incumbent Director.
(d) A Director shall hold office until the annual general
meeting for the year in which his term expires and until his successor shall
be elected and shall qualify, subject, however, to prior death, resignation,
retirement or removal from office. Any newly created directorship resulting
from an increase in the number of Directors and any other vacancy on the Board
of Directors, however caused, may be filled by a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director.
Any Director elected by the Board of Directors to fill a vacancy shall hold
office until the annual general meeting of Members for the year in which the
term of the Director vacating office expires and until his successor shall
have been elected and qualified. Any newly created directorship resulting
from an increase in the number of Directors may be created in any Class of
Directors that the Board of Directors may determine, and any Director elected
to fill the newly created vacancy shall hold office until the term of office
of such Class expires.
(e) One or more or all of the Directors of the Company may be
removed only for cause by the affirmative vote of the holders of at least a
majority of the outstanding shares generally entitled to vote, voting together
as a single class, at a meeting of Members for which proper notice of the
proposed removal has been given.
(f) Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of shares issued by the Company shall have the
right, voting separately by class or series, to elect Directors at an annual
general meeting or extraordinary general meeting of Members, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the provisions of these Articles. Directors so elected
shall not be divided into classes and shall be elected by such holders
annually unless expressly provided otherwise by those provisions or
resolutions. The aforesaid Directors and the Directors appointed under
Section 22.1 shall together constitute the Board of Directors from time to
time.
(g) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares generally entitled to
vote, voting together as a single class, shall be required to amend or repeal
or adopt any provision inconsistent with this Section 21.1.
21.2 The Board of Directors shall have the authority to fix the
compensation of Directors, which may include their expenses, if any, of
attendance at each meeting of the Directors or of a committee.
21.3 A Director may hold any other office or place of profit
under the Company in conjunction with his office of Director for such period
and on such terms as to remuneration and otherwise as the Board of Directors
may determine.
21.4 A Director may act by himself or his firm in a professional
capacity for the Company and he or his firm shall be entitled to remuneration
for professional services as if he were not a Director.
21.5 No membership qualification for Directors shall be
required.
21.6 A Director of the Company may be or become a Director or
other officer of or otherwise interested in any company promoted by the
Company or in which the Company may be interested as shareholder, member or
otherwise and no such Director shall be accountable to the Company for any
remuneration or other benefits received by him as a Director or officer of, or
from his interest in, such other company.
21.7 No person shall be disqualified from the office of Director
or prevented by such office from contracting with the Company, either as
vendor, purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the
Company for any profit realized by any such contract or transaction by reason
of such Director holding office or of the fiduciary relation thereby
established. A Director shall be at liberty to vote in respect of any
contract or transaction in which he is so interested as aforesaid; provided,
however, that the nature of the interest of any Director in any such contract
or transaction shall be disclosed by him at or prior to its consideration and
any vote thereon.
21.8 A general notice that a Director is a member of any
specified firm or company and is to be regarded as interested in any
transaction with such firm or company shall be sufficient disclosure under
Section 21.7 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
XXII. POWERS AND DUTIES OF DIRECTORS
22.1 The business and affairs of the Company shall be managed by
the Board of Directors who may exercise all such powers of the Company and do
all such lawful acts and things as are not, from time to time by the Statute
or by these Articles required to be exercised or done by the Company in
general meeting.
22.2 The Board of Directors may from time to time and at any
time by powers of attorney appoint any company, firm, person or body of
persons, whether nominated directly or indirectly by the Board of Directors,
to be the attorney or attorneys of the Company for such purpose and with such
powers, authorities and discretions (not exceeding those vested in or
exercisable by the Board of Directors under these Articles) and for such
period and subject to such conditions as it may think fit, and any such powers
of attorney may contain such provisions for the protection and convenience of
persons dealing with any such attorneys as the Board of Directors may deem fit
and may also authorize any such attorney to delegate all or any of the powers,
authorities and discretions vested in him.
22.3 All cheques, promissory notes, drafts, bills of exchange
and other negotiable instruments and all receipts for monies paid to the
Company shall be signed, drawn, accepted, endorsed or otherwise executed as
the case may be by such officer or officers or such other person or persons as
the Board of Directors shall from time to time designate.
22.4 The Board of Directors shall cause Minutes to be made for
the purpose of recording the proceedings at all meetings of the Company and
the Directors and of Committees of the Board of Directors.
22.5 The Board of Directors on behalf of the Company may direct
the payment of a gratuity or pension or allowance on retirement to any
Director who has held any other salaried office or place of profit with the
Company or to his widow or dependents and may make contributions to any fund
and pay premiums for the purchase or provision of any such gratuity, pension
or allowance.
22.6 The Board of Directors may exercise all the powers of the
Company to borrow money and to mortgage or charge its undertaking, property
and uncalled capital or any part thereof and to issue debentures, debenture
stock and other securities whether outright or as security for any debt,
liability or obligation of the Company or of any third party.
22.7 The Board of Directors may authorize any officer, officers,
agent or agents to enter into any contract or agreement of any nature
whatsoever, including, without limitation, any contract, deed, bond, mortgage,
guaranty, deed of trust, security agreement, pledge agreement, act of pledge,
collateral mortgage, collateral chattel mortgage or any other document or
instrument of any nature whatsoever, and to execute and deliver any such
contract, agreement, document or other instrument of any nature whatsoever for
and in the name of and on behalf of the Company, and such authority may be
general or confined to specific instances.
XXIII. COMMITTEES
23.1 The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of one or more Directors. Except as limited by the Statute, the
Memorandum, these Articles of Association or the resolution establishing such
committee, each committee shall have and may exercise all of the authority of
the Board of Directors as the Board of Directors may determine and specify in
the respective resolutions appointing each such committee. A majority of all
of the members of any such committee may elect the Chairman of such committee
and may fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide, and meetings of any committee may be held upon such
notice, or without notice, as shall from time to time be determined by the
members of any such committee. At all meetings of any committee a majority of
its members (or the member, if only one) shall constitute a quorum for the
transaction of business, and the act of a majority of the members present
shall be the act of any such committee, unless otherwise specifically provided
by the Statute, the Memorandum, these Articles or the resolution establishing
such committee. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required. The
Board of Directors shall have power at any time to change the number, subject
as aforesaid, and members of any such committee, to fill vacancies and to
discharge any such committee. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
XXIV. PROCEEDINGS OF DIRECTORS
24.1 Except as otherwise provided by these Articles, the Board
of Directors shall meet together for the dispatch of business, convening,
adjourning and otherwise regulating its meetings as it thinks fit. Questions
arising at any meeting shall be decided by a majority of the Directors present
at a meeting at which there is a quorum.
24.2 Regularly scheduled meetings of the Board of Directors may
be held at such time and at such place as shall from time to time be
determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the President of the Company on twenty-four (24)
hours' notice to each Director, either personally, by mail, telefax or by
telegram; special meetings shall be called by the President or Secretary in
like manner and on like notice on the written request of two (2) Directors.
Unless otherwise required by the Statute, the Memorandum, or these Articles,
neither the business to be transacted at, nor the purpose of, any special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Attendance of a Director at any meeting shall
constitute a waiver of notice of such meeting, except when a Director attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
24.3 The quorum necessary for the transaction of the business of
the Board of Directors shall be a majority of the Board.
24.4 All acts done by any meeting of the Board of Directors or of a
committee of the Board of Directors shall, notwithstanding that it be
afterwards discovered that there was some defect in the appointment of any
Director, or that they or any of them were disqualified, be as valid as if
every such person had been duly appointed and qualified to be a Director.
24.5 Members of the Board of Directors or of any committee thereof
may participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in
a meeting pursuant to this provision shall constitute presence in person at
such meeting.
24.6 A resolution in writing (in one or more counterparts) signed
by all the Directors for the time being or all the members of a committee of
Directors shall be as valid and effectual as if it had been passed at a
meeting of the Board of Directors or committee as the case may be duly
convened and held.
XXV. VACATION OF OFFICE OF DIRECTOR
25.1 The office of a Director shall be vacated:
(a) If he gives notice in writing to the Company that he resigns
the office of Director;
(b) If he dies;
(c) If he is found to be or becomes of unsound mind; or
(d) If removed pursuant to Section 21.1.
XXVI. CERTAIN BUSINESS COMBINATIONS
26.1 In addition to any approval by Members required by the
Statute or any other law of the Cayman Islands, the approval of the holders of
at least a majority of the outstanding shares entitled to vote, voting
together as a single class, at a meeting called for such purpose, shall be
required in order for the Company:
(i) to merge, consolidate or amalgamate with another
company;
(ii) to reorganize or reconstruct itself pursuant to a
plan sanctioned by the Cayman Islands courts; or
(iii) to sell, lease or exchange all or substantially
all of the assets of the Company;
provided that the foregoing approval by Members shall not apply to any such
transaction of the Company with any entity which the Company, directly or
indirectly, controls, as defined in Rule 405 under the Securities Act of 1933,
as amended from time to time, of the United States of America.
XXVII. SEAL
27.1 The Company may have a seal, and the seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise. Any officer of the Company will have the authority to affix the
seal to any document requiring it.
XXVIII. OFFICERS
28.1 The officers of the Company shall be appointed by the Board of
Directors and may include a Chairman of the Board, a Chief Executive Officer,
a President, Senior and Executive Vice Presidents and Vice Presidents, a
Secretary, a Treasurer and one or more Assistant Secretaries and Assistant
Treasurers. The Board of Directors may also choose such other officers and
agents as it shall deem necessary or desirable and such persons shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined by the Board of Directors from time to time.
Two or more offices may be held by the same person. None of the officers need
be a Director or a Member of the Company. The compensation of all officers
and agents of the Company shall be fixed from time to time by the Board of
Directors or pursuant to its direction. No officer shall be prevented from
receiving such compensation by reason of his also being a Director. The
officers of the Company shall hold office until their successors are elected
or appointed and qualified, or until their earlier death, resignation,
retirement, disqualification or removal. Any officer or agent elected or
appointed by the Board of Directors may be removed at any time with or without
cause by the affirmative vote of a majority of the Board of Directors
whenever, in its judgment, the best interests of the Company shall be served
thereby, but any such removal shall be without prejudice to the contractual
rights, if any, of the person so removed. Any officer may resign at any time
by giving written notice to the Company. Any such resignation shall take
effect at the date of the receipt of such notice or at such other time
specified therein, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. Election or
appointment of an officer or agent shall not of itself create contract rights.
Any vacancy occurring in any office of the Company may be filled by the Board
of Directors for the unexpired portion of the term.
28.2 A provision of the Statute or these Articles requiring or
authorizing a thing to be done by a Director and an officer shall not be
satisfied by its being done by the one person acting in the dual capacity of
Director and officer.
XXIX. DIVIDENDS AND RESERVES
29.1 Subject to the Statute, the Board of Directors may from time
to time declare dividends on shares of the Company outstanding and authorize
payment of the same out of the profits of the Company (realized or
unrealized), share premium account, or any other account permitted by the
Statute, and may from time to time pay to the Members such interim dividends,
as appears to the Board of Directors to be permitted by the Statute.
29.2 The Board of 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.
29.3 The Board of Directors may declare that any dividend be paid
wholly or partly by the distribution of shares or other securities of the
Company and/or specific assets and in particular of paid up shares,
debentures, or debenture stock of any other company or in any one or more of
such ways and where any difficulty arises in regard to such distribution, the
Board of Directors may settle the same as it deems expedient and in particular
may issue fractional shares and fix the value for distribution of such
specific assets or any part thereof and may determine that cash payments shall
be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all Members and may vest any such specific assets in
trustees as may seem expedient to the Board of Directors.
29.4 The Board of Directors of the Company may declare and pay
stock dividends to the extent permitted by the law (without the need for
Member approval).
29.5 No dividend shall bear interest against the Company unless
expressly authorized by the Board of Directors.
XXX. CAPITALIZATION
30.1 The Company may upon the recommendation of the Board of
Directors capitalise any sum standing to the credit of any of the Company's
reserve accounts (including share premium account and capital redemption
reserve fund) or any sum standing to the credit of profit and loss account or
otherwise available for distribution and to appropriate such sum to Members in
the proportions in which such sum would have been divisible amongst them had
the same been a distribution of profits by way of dividend and to apply such
sum on their behalf in paying up in full unissued shares (not being redeemable
shares) for allotment and distribution credited as fully paid up to and
amongst them in the proportion aforesaid. In such event the Board of
Directors shall do all acts and things required to give effect to such
capitalization, with full power to the Board of Directors to make such
provisions as it thinks fit for the case of shares becoming distributable in
fractions (including provisions whereby the benefit of fractional entitlements
accrue to the Company rather than to the Members concerned). The Board of
Directors may authorize any person to enter on behalf of all of the Members
interested into an agreement with the Company providing for such
capitalization and matters incidental thereto and any agreement made under
such authority shall be effective and binding on all concerned.
XXXI. AUDIT
31.1 The accounts relating to the Company's affairs shall be
audited in such manner, if at all, as may be determined from time to time by
the Board of Directors.
XXXII. NOTICES
32.1 Notices shall be in writing and may be given by the Company to
any Member either personally or by sending it by post, air courier, cable,
facsimile transmission or telex to him or to his address as shown in the
register of Members, such notice, if mailed, to be forwarded airmail where
practicable. Any such notice shall be deemed to have been effected on the
date the letter containing the same is posted as aforesaid, or sent by air
courier, cable, facsimile transmission or telex.
32.2 A notice may be given by the Company to the joint holders of
record of a share by giving the notice to the joining holder first named on
the register of Members in respect of the share.
32.3 A notice may be given by the Company to the person or persons
which the Company has been advised are entitled to a share or shares in
consequence of the death or bankruptcy of a Member by sending it through the
post as aforesaid in a prepaid letter addressed to them by name, or by the
title of representatives of the deceased, or trustee of the bankruptcy, or by
any like description at the address supplied for that purpose by the persons
claiming to be so entitled, or at the option of the Company by giving the
notice in any manner in which the same might have been given if the death or
bankruptcy had not occurred.
32.4 Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every holder of voting shares as shown in the register of
Members as of the record date for such meeting except that in the case of
joint holder the notice shall be sufficient if given to the joint holder first
named in the register of Members;
(b) every person upon whom the ownership of a voting share
devolves by reason of his being a legal personal representative or a trustee
in bankruptcy of a holder of voting shares of record where such holder but for
his death or bankruptcy would be entitled to receive notice of the meeting;
and
except as otherwise required by law or these Articles, no other person shall
be entitled to receive notice of general meetings.
XXXIII. INDEMNITY AND LIMITATION OF LIABILITY
33.1 (a) The Company shall indemnify, to the full extent now or
hereafter permitted by law, any person (including his heirs, executors and
administrators) who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including, without
limitation, an action by or in the right of the Company), by reason of his
acting as, or having in the past acted as, a Director, officer, employee or
agent of, or his acting in any other capacity for or on behalf of, the
Company, (including his serving for, on behalf of or at the request of the
Company as a Director, officer employee or agent of another company,
partnership, joint venture, trust or other enterprise, or in a fiduciary or
other capacity with respect to any employee benefit plan maintained by the
Company) against any expense (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person (or
his heirs, executors and administrators) in respect thereof. The Company
shall advance the expenses of defending any such action, suit or proceeding
(including appeals) in accordance with and to the full extent now or hereafter
permitted by law.
(b) The Board of Directors may, notwithstanding any interest of
the directors in such action, authorize the Company to purchase and maintain
insurance on behalf of any person described in Section 33.1(a), against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of this
Article XXXIII.
(c) Directors of the Company shall have no personal liability to
the Company or its Members for monetary damages for breach of fiduciary or
other duties as a director, except (i) for any breach of a director's duty of
loyalty to the Company or its Members, (ii) for act or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
or (iii) for any transaction from which a director derived an improper
personal benefit.
(d) The provisions of this Article XXXIII shall be applicable to
all actions, claims, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or
after its adoption. The provisions of this Article XXXIII shall be deemed to
be a contract between the Company and each director, officer, employee or
agent who serves in such capacity at any time while this Article and the
relevant provisions of the law, if any, are in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter brought or
threatened based in whole or in part on any such state of facts. If any
provision of this Article XXXIII shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect any other
application of such provision or the validity of the remaining provisions
hereof. The rights of indemnification and advancement of expenses provided in
this Article shall neither be exclusive of, nor be deemed in limitation of,
any rights to which any such officer, director, employee or agent may
otherwise be entitled or permitted by contract, vote of Members or directors
or otherwise, or as a matter of law, both as to actions in his official
capacity and actions in any other capacity while holding such office, it being
the policy of the Company that indemnification of the specified individuals
shall be made to the fullest extent permitted by law.
XXXIV. BOOKS AND RECORDS
34.1 In addition to any rights which may be conferred on Members by
Statute, upon written demand under oath stating the purpose thereof, any
Member may review for any proper purpose, during usual hours for business, the
books and records of the Company, including without limitation, the Register.
A proper purpose shall mean a purpose reasonably related to such person's
interest as a Member.
XXXV. WINDING UP
35.1 In the event of any dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary, after there shall have been
paid or set aside for payment to the holders of any outstanding shares ranking
senior to the Ordinary Shares as to distribution on liquidation, distribution
or winding up, the full amounts to which they shall be entitled and the
holders of the then outstanding Ordinary Shares shall be entitled to receive,
pro rata according to the number of Ordinary Shares registered in the names of
such Members, any remaining assets of the Company available for distribution
to its Members; provided, if, at such time, the holder of Ordinary Shares has
any outstanding debts, liabilities or engagements to or with the Company
(whether presently payable or not), either alone or jointly with any other
person, whether a Member or not (including, without limitation, any liability
associated with the unpaid purchase price of such Ordinary Shares), the
liquidator appointed to oversee the liquidation of the Company may deduct from
the amount payable in respect of such Ordinary Shares the aggregate amount of
such debts, liabilities and engagements and apply such amount to any of such
holders debts, liabilities or engagements to or with the Company (whether
presently payable or not). The liquidator may distribute, in kind, to the
holders of the Ordinary Shares remaining assets of the Company or may sell,
transfer or otherwise dispose of all or any part of such remaining assets to
any other person, corporation, trust or entity and receive payment therefor in
cash, shares or obligations of such other person, corporation, trust or entity
or any combination thereof, and may sell all or any part of the consideration
so received, and may distribute the consideration received or any balance or
proceeds thereof to holders of the Ordinary Shares. 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.
XXXVI. DEREGISTRATION
36.1 (a) The Company may by Special Resolution resolve to be
registered by way of continuation in a jurisdiction outside the Cayman Islands
or such other jurisdiction in which it is for the time being incorporated,
registered or existing; and
(b) In furtherance of a resolution adopted pursuant to (a)
above of this Regulation, the Directors may cause an application to be made to
the Registrar of Companies to deregister the Company in the Cayman Islands or
such other jurisdiction in which it is for the time being incorporated,
registered or existing and may cause all such further steps as they consider
appropriate to be taken to effect the transfer by way of continuation of the
Company.
XXXVII. FISCAL YEAR
37.1 Each Fiscal Year shall commence on such date as may be
specified by the Board of Directors.
XXXVIII. AMENDMENTS OF ARTICLES
38.1 Subject to the Statute, except as otherwise provided in these
Articles, the Company may at anytime and from time to time by Special
Resolution alter or amend these Articles in whole or in part.