TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
ARTICLES OF ASSOCIATION
OF
BETHURUM LABORATORIES, LTD.
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following
table shall bear the meanings set opposite them respectively in the
second column thereof.
Words Meaning
capital The sum of the aggregate par value of all
outstanding shares with par value of the Company
and shares with par value held by the Company as
treasury shares plus
(a) the aggregate of the amounts designated as
capital of all outstanding shares without
par value of the Company and shares
without par value held by the Company as
treasury shares, and
(b) the amounts as are from time to time
transferred from surplus to capital by a
resolution of directors.
member A person who holds shares in the Company.
person An individual, a corporation, a trust, the
estate of a deceased individual, a partnership
or an unincorporated association of persons.
resolution of (a) A resolution approved at a duly convened
directors and constituted meeting of directors of
the Company or of a committee of directors
of the Company by the affirmative vote of
a majority of the directors present at the
meeting who voted and did not abstain; or
(b) a resolution consented to in writing by
all directors or of all members of the
committee, as the case may be;
except that where a director is given more than
one vote, he shall be counted by the number of
votes he casts for the purpose of establishing a
majority.
resolution of (a) A resolution approved at a duly convened
members and constituted meeting of the members of
the Company by the affirmative vote of
(i) a simple majority of the votes of
the shares entitled to vote thereon
which were present at the meeting
and were voted and not abstained,
or
(ii) a simple majority of the votes of
each class or series of shares which
were present at the meeting and
entitled to vote thereon as a class
or series and were voted and not
abstained and of a simple majority
of the votes of the remaining shares
entitled to vote thereon which were
present at the meeting and were
voted and not abstained; or
(b) a resolution consented to in writing by
(i) an absolute majority of the votes of
shares entitled to vote thereon, or
(ii) an absolute majority of the votes of
each class or series of shares
entitled to vote thereon as a class
or series and of an absolute
majority of the votes of the
remaining shares entitled to vote
thereon;
securities Shares and debt obligations of every kind, and
options, warrants and rights to acquire shares,
or debt obligations.
surplus The excess, if any, at the time of the
determination of the total assets of the Company
over the aggregate of its total liabilities, as
shown in its books of account, plus the
Company's capital.
the Act The International Business Companies Act (No. 8
of 1984) including any modification, extension,
re-enactment or renewal thereof and any
regulations made thereunder.
the Memorandum The Memorandum of Association of the Company as
originally framed or as from time to time
amended.
the Seal Any Seal which has been duly adopted as the Seal
of the Company.
these Articles These Articles of Association as originally
framed or as from time to time amended.
treasury shares Shares in the Company that were previously
issued but were repurchased, redeemed or
otherwise acquired by the Company and not
cancelled.
2. "Written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented or
reproduced by any mode of reproducing words in a visible form,
including telex, facsimile, telegram, cable or other form of writing
produced by electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear
the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and
not the number of members who actually voted and a reference to shares
being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be issued
according to the provisions of the Memorandum.
REGISTERED SHARES
7. Every member holding registered shares in the Company shall be entitled
to a certificate signed by a director or officer of the Company and
under the Seal specifying the share or shares held by him and the
signature of the director or officer and the Seal may be facsimiles.
8. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless
from any loss or liability which it or they may incur by reason of any
wrongful or fraudulent use or representation made by any person by
virtue of the possession thereof. If a share certificate for registered
shares is worn out or lost it may be renewed on production of the worn
out certificate or on satisfactory proof of its loss together with such
indemnity as may be required by a resolution of directors.
9. If several persons are registered as joint holders of any shares, any
one of such persons may give an effectual receipt for any dividend
payable in respect of such shares.
BEARER SHARES
10. Subject to a request for the issue of bearer shares and to the payment
of the appropriate consideration for the shares to be issued, the
Company may, to the extent authorized by the Memorandum, issue bearer
shares to, and at the expense of, such person as shall be specified in
the request. Bearer shares may not be issued for debt obligations,
promissory notes or other obligations to contribute money or property
and registered shares issued for debt obligations, promissory notes or
other obligations to contribute money or property shall not be exchanged
for bearer shares unless such debt obligations, promissory notes or
other obligations to contribute money or property have been satisfied.
The Company may also upon receiving a request in writing accompanied by
the share certificate for the shares in question, exchange registered
shares for bearer shares or may exchange bearer shares for registered
shares. Such request served on the Company by the holder of bearer
shares shall specify the name and address of the person to be registered
and unless the request is delivered in person by the bearer shall be
authenticated as hereinafter provided. Such request served on the
Company by the holder of bearer shares shall also be accompanied by any
coupons or talons which at the date of such delivery have not become due
for payment of dividends or any other distribution by the Company to the
holders of such shares. Following such exchange the share certificate
relating to the exchanged shares shall be delivered as directed by the
member requesting the exchange.
11. Bearer share certificates shall be under the Seal and shall state that
the bearer is entitled to the shares therein specified, and may provide
by coupons, talons or otherwise for the payment of dividends or other
moneys on the shares included therein.
12. Subject to the provisions of the Act and of these Articles, the bearer
of a bearer share certificate shall be deemed to be a member of the
Company and shall be entitled to the same rights and privileges as he
would have had if his name had been included in the share register of
the Company as the holder of the shares.
13. Subject to any specific provisions in these Articles, in order to
exercise his rights as a member of the Company, the bearer of a bearer
share certificate shall produce the bearer share certificate as evidence
of his membership of the Company. Without prejudice to the generality
of the foregoing, the following rights may be exercised in the following
manner:
(a) for the purpose of exercising his voting rights at a
meeting, the bearer of a bearer share certificate shall
produce such certificate to the chairman of the meeting;
(b) for the purpose of exercising his vote on a resolution in
writing, the bearer of a bearer share certificate shall
cause his signature to any such resolution to be
authenticated as hereinafter set forth;
(c) for the purpose of requisitioning a meeting of members, the
bearer of a bearer share certificate shall address his
requisition to the directors and his signature thereon shall
be duly authenticated as hereinafter provided; and
(d) for the purpose of receiving dividends, the bearer of a
bearer share certificate shall present at such places as may
be designated by the directors any coupons or talons issued
for such purpose, or shall present the bearer share
certificate to any paying agent authorized to pay dividends.
14. The signature of the bearer of a bearer share certificate shall be
deemed to be duly authenticated if the bearer of the bearer share
certificate shall produce such certificate to a notary public or a bank
manager or a director or officer of the Company (herein referred to as
an "authorized person") and the authorized person endorses the document
bearing such signature with a statement:
(a) identifying the bearer share certificate produced to him
by number and date and specifying the number of shares and
the class of shares (if appropriate) comprised therein;
(b) confirming that the signature of the bearer of the bearer
share certificate was subscribed in his presence and that if
the bearer is representing a body corporate he has so
acknowledged and has produced satisfactory evidence thereof;
and
(c) specifying the capacity in which he is qualified as an
authorized person and, if a notary public, affixing his seal
thereto or, if a bank manager, attaching an identifying
stamp of the bank of which he is a manager.
15. Notwithstanding any other provisions of these Articles, at any time, the
bearer of a bearer share certificate may deliver the certificate for
such shares into the custody of the Company at its registered office,
whereupon the Company shall issue a receipt therefor under the Seal
signed by a director or officer identifying by name and address the
person delivering such certificate and specifying the date and number of
the bearer share certificate so deposited and the number of shares
comprised therein. Any such receipt may be used by the person named
therein for the purpose of exercising the rights vested in the shares
represented by the bearer share certificate so deposited including the
right to appoint a proxy. Any bearer share certificate so deposited
shall be returned to the person named in the receipt or his personal
representative if such person be dead and thereupon the receipt issued
therefor shall be of no further effect whatsoever and shall be returned
to the Company for cancellation or, if it has been lost or mislaid, such
indemnity as may be required by resolution of directors shall be given
to the Company.
16. The bearer of a bearer share certificate shall for all purposes be
deemed to be the owner of the shares comprised in such certificate and
in no circumstances shall the Company or the chairman of any meeting of
members or the Company's registrars or any director or officer of the
Company or any authorized person be obliged to inquire into the
circumstances whereby a bearer share certificate came into the hands of
the bearer thereof, or to question the validity or authenticity of any
action taken by the bearer of a bearer share certificate whose signature
has been authenticated as provided herein.
17. If the bearer of a bearer share certificate shall be a corporation, then
all the rights exercisable by virtue of such shareholding may be
exercised by an individual duly authorized to represent the corporation
but unless such individual shall acknowledge that he is representing a
corporation and shall produce upon request satisfactory evidence
that he is duly authorized to represent the corporation, the individual
shall for all purposes hereof be regarded as the holder of the shares in
any bearer share certificate held by him.
18. The directors may provide for payment of dividends to the holders of
bearer shares by coupons or talons and in such event the coupons or
talons shall be in such form and payable at such time and in such place
or places as the directors shall resolve. The Company shall be entitled
to recognize the absolute right of the bearer of any coupon or talon
issued as aforesaid to payment of the dividend to which it relates and
delivery of the coupon or talon to the Company or its agents shall
constitute in all respects a good discharge of the Company in respect of
such dividend.
19. If any bearer share certificate, coupon or talon be worn out or defaced,
the directors may, upon the surrender thereof for cancellation, issue a
new one in its stead, and if any bearer share certificate, coupon or
talon be lost or destroyed, the directors may upon the loss or
destruction being established to their satisfaction, and upon such
indemnity being given to the Company as it shall by resolution of
directors determine, issue a new bearer share certificate in its stead,
and in either case on payment of such sum as the Company may from time
to time by resolution of directors require. In case of loss or
destruction the person to whom such new bearer share certificate, coupon
or talon is issued shall also bear and pay to the Company all expenses
incidental to the investigation by the Company of the evidence of such
loss or destruction and to such indemnity.
SHARES, AUTHORIZED CAPITAL, CAPITAL AND SURPLUS
20. Subject to the provisions of these Articles and any resolution of
members, the unissued shares of the Company shall be at the disposal of
the directors who may, without limiting or affecting any rights
previously conferred on the holders of any existing shares or class or
series of shares, offer, allot, grant options over or otherwise dispose
of shares to such persons, at such times and upon such terms and
conditions as the Company may by resolution of directors determine.
21. No share in the Company may be issued until the consideration in respect
thereof is fully paid, and when issued the share is for all purposes
fully paid and non-assessable save that a share issued for a promissory
note or other written obligation for payment of a debt may be issued
subject to forfeiture in the manner prescribed in these Articles.
22. Shares in the Company may be issued for money, a promissory note or
other written obligation to contribute money or property as shall be
determined by a resolution of directors. Shares may only be issued for
services rendered, personal property or an estate in real property or
any combination of the foregoing as shall be determined by a resolution
of directors with the unanimous consent of all members.
23. Shares in the Company may be issued for such amount of consideration as
the directors may from time to time by resolution of directors
determine, except that in the case of shares with par value, the amount
shall not be less than the par value, and in the absence of fraud the
decision of the directors as to the value of the consideration received
by the Company in respect of the issue is conclusive unless a question
of law is involved. The consideration in respect of the shares
constitutes capital to the extent of the par value and the excess
constitutes surplus.
24. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company,
shall be treated for all purposes as having been issued for money equal
to the consideration received or deemed to have been received by the
Company in respect of the other share, debt obligation or security.
25. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the
Company may by resolution of directors determine.
26. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
27. Upon the issue by the Company of a share without par value, if an amount
is stated in the Memorandum to be authorized capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except
that the directors must designate as capital an amount of the
consideration that is at least equal to the amount that the share is
entitled to as a preference, if any, in the assets of the Company upon
liquidation of the Company.
28. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares of
equal value.
29. Subject to provisions to the contrary in
(a) the Memorandum or these Articles;
(b) the designations, powers, preferences, rights, qualifications,
limitations and restrictions with which the shares were issued; or
(c) the subscription agreement for the issue of the shares,
the Company may not purchase, redeem or otherwise acquire its own
shares without the consent of members whose shares are to be
purchased, redeemed or otherwise acquired.
30. No purchase, redemption or other acquisition of shares shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business
and the realizable value of the assets of the Company will not be less
than the sum of its total liabilities, other than deferred taxes, as
shown in the books of account, and its capital and, in the absence of
fraud, the decision of the directors as to the realizable value of the
assets of the Company is conclusive, unless a question of law is
involved.
31. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired
(a) pursuant to a right of a member to have his shares redeemed or to
have his shares exchanged for money or other property of the
Company;
(b) by virtue of a transfer of capital pursuant to Regulation 59;
(c) by virtue of the provisions of Section 83 of the Act; or
(d) pursuant to an order of the Court.
32. Shares that the Company purchases, redeems or otherwise acquires
pursuant to the preceding Regulation may be cancelled or held as
treasury shares except to the extent that such shares are in excess of
80 percent of the issued shares of the Company in which case they shall
be cancelled but they shall be available for reissue.
33. Where shares in the Company are held by the Company as treasury shares
or are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the
election of directors of the other company, such shares of the Company
are not entitled to vote or to have dividends paid thereon and shall not
be treated as outstanding for any purpose except for purposes of
determining the capital of the Company.
34. The Company may purchase, redeem or otherwise acquire its shares at a
price lower than the fair value if permitted by, and then only in
accordance with, the terms of
(a) the Memorandum or these Articles; or
(b) a written agreement for the subscription for the shares to be
purchased, redeemed or otherwise acquired.
35. The Company may by a resolution of directors include in the computation
of surplus for any purpose the unrealized appreciation of the assets of
the Company, and, in the absence of fraud, the decision of the directors
as to the value of the assets is conclusive, unless a question of law is
involved.
MORTGAGES AND CHARGES OF REGISTERED SHARES
36. Members may mortgage or charge their registered shares in the Company
and upon satisfactory evidence thereof the Company shall give effect to
the terms of any valid mortgage or charge except insofar as it may
conflict with any requirements herein contained for consent to the
transfer of shares.
37. In the case of the mortgage or charge of registered shares there may be
entered in the share register of the Company at the request of the
registered holder of such shares
(a) a statement that the shares are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the aforesaid particulars are entered in the
share register.
38. Where particulars of a mortgage or charge are registered, such
particulars shall be cancelled
(a) with the consent of the named mortgagee or chargee or anyone
authorized to act on his behalf; or
(b) upon evidence satisfactory to the directors of the discharge of
the liability secured by the mortgage or charge and the issue of
such indemnities as the directors shall consider necessary or
desirable.
39. Whilst particulars of a mortgage or charge are registered, no transfer
of any share comprised therein shall be effected without the written
consent of the named mortgagee or chargee or anyone authorized to act on
his behalf.
FORFEITURE
40. When shares issued for a promissory note or other written obligation for
payment of a debt have been issued subject to forfeiture, the following
provisions shall apply.
41. Written notice specifying a date for payment to be made and the shares
in respect of which payment is to be made shall be served on the member
who defaults in making payment pursuant to a promissory note or other
written obligations to pay a debt.
42. The written notice specifying a date for payment shall
(a) name a further date not earlier than the expiration of 14 days
from the date of service of the notice on or before which payment
required by the notice is to be made; and
(b) contain a statement that in the event of non-payment at or before
the time named in the notice the shares, or any of them, in
respect of which payment is not made will be liable to be
forfeited.
43. Where a written notice has been issued and the requirements have not
been complied with within the prescribed time, the directors may at any
time before tender of payment forfeit and cancel the shares to which the
notice relates.
44. The Company is under no obligation to refund any moneys to the member
whose shares have been forfeited and cancelled pursuant to these
provisions. Upon forfeiture and cancellation of the shares the member
is discharged from any further obligation to the Company with respect to
the shares forfeited and cancelled.
LIEN
45. The Company shall have a first and paramount lien on every share issued
for a promissory note or for any other binding obligation to contribute
money or property or any combination thereof to the Company, and the
Company shall also have a first and paramount lien on every share
standing registered in the name of a member, whether singly or jointly
with any other person or persons, for all the debts and liabilities of
such member or his estate to the Company, whether the same shall have
been incurred before or after notice to the Company of any interest of
any person other than such member, and whether the time for the payment
or discharge of the same shall have actually arrived or not, and
notwithstanding that the same are joint debts or liabilities of such
member or his estate and any other person, whether a member of the
Company or not. The Company's lien on a share shall extend to all
dividends payable thereon. The directors may at any time either
generally, or in any particular case, waive any lien that has arisen or
declare any share to be wholly or in part exempt from the provisions of
this Regulation.
46. In the absence of express provisions regarding sale in the promissory
note or other binding obligation to contribute money or property, the
Company may sell, in such manner as the directors may by resolution of
directors determine, any share on which the Company has a lien, but no
sale shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of twenty-one days after a
notice in writing, stating and demanding payment of the sum presently
payable and giving notice of the intention to sell in default of such
payment, has been served on the holder for the time being of the share.
47. The net proceeds of the sale by the Company of any shares on which it
has a lien shall be applied in or towards payment of discharge of the
promissory note or other binding obligation to contribute money or
property or any combination thereof in respect of which the lien exists
so far as the same is presently payable and any residue shall (subject
to a like lien for debts or liabilities not presently payable as existed
upon the share prior to the sale) be paid to the holder of the share
immediately before such sale. For giving effect to any such sale the
directors may authorize some person to transfer the share sold to the
purchaser thereof. The purchaser shall be registered as the holder of
the share and he shall not be bound to see to the application of the
purchase money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
TRANSFER OF SHARES
48. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed by
the transferor and containing the name and address of the transferee,
but in the absence of such written instrument of transfer the directors
may accept such evidence of a transfer of shares as they consider
appropriate.
49. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
50. Subject to any limitations in the Memorandum, the Company must on the
application of the transferor or transferee of a registered share in the
Company enter in the share register the name of the transferee of the
share save that the registration of transfers may be suspended and the
share register closed at such times and for such periods as the Company
may from time to time by resolution of directors determine provided
always that such registration shall not be suspended and the share
register closed for more than 60 days in any period of 12 months.
TRANSMISSION OF SHARES
5l. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognized by the Company as having any title to his share but
they shall not be entitled to exercise any rights as a member of the
Company until they have proceeded as set forth in the next following
three Regulations.
52. The production to the Company of any document which is evidence of
probate of the will, or letters of administration of the estate, or
confirmation as executor, of a deceased member or of the appointment of
a guardian of an incompetent member or the trustee of a bankrupt member
shall be accepted by the Company even if the deceased, incompetent or
bankrupt member is domiciled outside the British Virgin Islands if the
document evidencing the grant of probate or letters of administration,
confirmation as executor, appointment as guardian or trustee in
bankruptcy is issued by a foreign court which had competent jurisdiction
in the matter. For the purpose of establishing whether or not a foreign
court had competent jurisdiction in such a matter the directors may
obtain appropriate legal advice. The directors may also require an
indemnity to be given by the executor, administrator, guardian or
trustee in bankruptcy.
53. Any person becoming entitled by operation of law or otherwise to a share
or shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced
as may reasonably be required by the directors. An application by any
such person to be registered as a member shall for all purposes be
deemed to be a transfer of shares of the deceased, incompetent or
bankrupt member and the directors shall treat it as such. 54.
Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person to be
named by him be registered as the transferee of such share or shares and
such request shall likewise be treated as if it were a transfer.
55. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and
the circumstances of the case.
REDUCTION OR INCREASE IN AUTHORIZED CAPITAL OR CAPITAL
56. The Company may by a resolution of directors amend the Memorandum to
increase or reduce its authorized capital and in connection therewith
the Company may in respect of any unissued shares increase or reduce the
number of such shares, increase or reduce the par value of any such
shares or effect any combination of the foregoing.
57. The Company may amend the Memorandum to
(a) divide the shares, including issued shares, of a class or series
into a larger number of shares of the same class or series; or
(b) combine the shares, including issued shares, of a class or series
into a smaller number of shares of the same class or series,
provided, however, that where shares are divided or combined under
(a) or (b) of this Regulation, the aggregate par value of the new
shares must be equal to the aggregate par value of the original
shares.
58. The capital of the Company may by a resolution of directors be increased
by transferring an amount of the surplus of the Company to capital.
59. Subject to the provisions of the two next succeeding Regulations, the
capital of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the Company to surplus.
60. No reduction of capital shall be effected that reduces the capital of
the Company to an amount that immediately after the reduction is less
than the aggregate par value of all outstanding shares with par value
and all shares with par value held by the Company as treasury shares and
the aggregate of the amounts designated as capital of all outstanding
shares without par value and all shares without par value held by the
Company as treasury shares that are entitled to a preference, if any, in
the assets of the Company upon liquidation of the Company.
61. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its
business and that the realizable assets of the Company will not be less
than its total liabilities, other than deferred taxes, as shown in the
books of the Company and its remaining capital, and, in the absence of
fraud, the decision of the directors as to the realizable value of the
assets of the Company is conclusive, unless a question of law is
involved.
MEETINGS AND CONSENTS OF MEMBERS
62. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside
the British Virgin Islands as the directors consider necessary or
desirable.
63. Upon the written request of members holding 10 percent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
64. The directors shall give not less than 7 days notice of meetings of
members to those persons whose names on the date the notice is given
appear as members in the share register of the Company and are entitled
to vote at the meeting.
65. The directors may fix the date notice is given of a meeting of members
as the record date for determining those shares that are entitled to
vote at the meeting.
66. A meeting of members may be called on short notice:
(a) if members holding not less than 90 percent of the total number of
shares entitled to vote on all matters to be considered at the
meeting, or 90 percent of the votes of each class or series of
shares where members are entitled to vote thereon as a class or
series together with not less than a 90 percent majority of the
remaining votes, have agreed to short notice of the meeting, or
(b) if all members holding shares entitled to vote on all or any
matters to be considered at the meeting have waived notice of the
meeting and for this purpose presence at the meeting shall be
deemed to constitute waiver.
67. The inadvertent failure of the directors to give notice of a meeting to
a member, or the fact that a member has not received notice, does not
invalidate the meeting.
68. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
69. The instrument appointing a proxy shall be produced at the place
appointed for the meeting before the time for holding the meeting at
which the person named in such instrument proposes to vote.
70. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above Company with
shares HEREBY APPOINT of
or failing him of to be my/our proxy to vote for
me/us at the meeting of members to be held on the day of
and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
.............................
Member
7l. The following shall apply in respect of joint ownership of shares:
(a) if two or more persons hold shares jointly each of them may be
present in person or by proxy at a meeting of members and may
speak as a member;
(b) if only one of the joint owners is present in person or by proxy
he may vote on behalf of all joint owners, and
(c) if two or more of the joint owners are present in person or by
proxy they must vote as one.
72. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
73. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50
percent of the votes of the shares or class or series of shares entitled
to vote on resolutions of members to be considered at the meeting. If a
quorum be present, notwithstanding the fact that such quorum may be
represented by only one person then such person may resolve any matter
and a certificate signed by such person accompanied where such person be
a proxy by a copy of the proxy form shall constitute a valid resolution
of members.
74. If within two hours 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
next business day at the same time and place or to such other time and
place as the directors may determine, and if at the adjourned meeting
there are present within one hour from the time appointed for the
meeting in person or by proxy not less than one third of the votes of
the shares or each class or series of shares entitled to vote on the
resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
75. At every meeting of members, the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of
the Board of Directors or if the Chairman of the Board of Directors is
not present at the meeting, the members present shall choose some one of
their number to be the chairman. If the members are unable to choose a
chairman for any reason, then the person representing the greatest
number of voting shares present in person or by prescribed form of proxy
at the meeting shall preside as chairman failing which the oldest
individual member or representative of a member present shall take the
chair.
76. The chairman may, with the consent of the meeting, adjourn any 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.
77. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall
be announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any
member present in person or by proxy who disputes the announcement by
the chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the chairman shall
thereupon cause a poll to be taken. If a poll is taken at any meeting,
the result thereof shall be duly recorded in the minutes of that meeting
by the chairman.
78. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any
individual to speak for or represent such member shall be determined by
the law of the jurisdiction where, and by the documents by which, the
person is constituted or derives its existence. In case of doubt, the
directors may in good faith seek legal advice from any qualified person
and unless and until a court of competent jurisdiction shall otherwise
rule, the directors may rely and act upon such advice without incurring
any liability to any member.
79. Any person other than an individual which is a member of the Company may
by resolution of its directors or other governing body authorize such
person as it thinks fit to act as its representative at any meeting of
the Company or of any class of members of the Company, and the person so
authorized shall be entitled to exercise the same powers on behalf of
the person which he represents as that person could exercise if it were
an individual member of the Company.
80. The chairman of any meeting at which a vote is cast by proxy or on
behalf of any person other than an individual may call for a notarially
certified copy of such proxy or authority which shall be produced within
7 days of being so requested or the votes cast by such proxy or on
behalf of such person shall be disregarded.
81. Directors of the Company may attend and speak at any meeting of members
of the Company and at any separate meeting of the holders of any class
or series of shares in the Company.
82. An action that may be taken by the members at a meeting may also be
taken by a resolution of members consented to in writing or by telex,
telegram, cable, facsimile or other written electronic communication,
without the need for any notice, but if any resolution of members is
adopted otherwise than by the unanimous written consent of all members,
a copy of such resolution shall forthwith be sent to all members not
consenting to such resolution. The consent may be in the form of
counterparts, each counterpart being signed by one or more members.
DIRECTORS
83. The first directors of the Company shall be appointed by the subscribers
to the Memorandum; and thereafter, the directors shall be elected by the
members for such term as the members determine.
84. The minimum number of directors shall be one and the maximum number
shall be 7.
85. Each director shall hold office for the term, if any, fixed by
resolution of members or until his earlier death, resignation or
removal.
86. A director may be removed from office, with or without cause, by a
resolution of members or, with cause, by a resolution of directors.
87. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from
the date the notice is received by the Company or from such later date
as may be specified in the notice.
88. The directors may at any time appoint any person to be a director either
to fill a vacancy or as an addition to the existing directors. A
vacancy occurs through the death, resignation or removal of a director,
but a vacancy or vacancies shall not be deemed to exist where one or
more directors shall resign after having appointed his or their
successor or successors.
89. The Company may determine by resolution of directors to keep a register
of directors containing
(a) the names and addresses of the persons who are directors of the
Company;
(b) the date on which each person whose name is entered in the
register was appointed as a director of the Company; and
(c) the date on which each person named as a director ceased to be a
director of the Company.
90. If the directors determine to maintain a register of directors, a copy
thereof shall be kept at the registered office of the Company and the
Company may determine by resolution of directors to register a copy of
the register with the Registrar of Companies.
9l. With the prior or subsequent approval by a resolution of members, the
directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
92. A director shall not require a share qualification and may be an
individual or a company.
POWERS OF DIRECTORS
93. The business and affairs of the Company shall be managed by the
directors who may pay all expenses incurred preliminary to and in
connection with the formation and registration of the Company and may
exercise all such powers of the Company as are not by the Act or by the
Memorandum or these Articles required to be exercised by the members of
the Company, subject to any delegation of such powers as may be
authorized by these Articles and to such requirements as may be
prescribed by a resolution of members; but no requirement made by a
resolution of members shall prevail if it be inconsistent with these
Articles nor shall such requirement invalidate any prior act of the
directors which would have been valid if such requirement had not been
made.
94. The directors may, by a resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company. The resolution of directors appointing an agent may authorize
the agent to appoint one or more substitutes or delegates to exercise
some or all of the powers conferred on the agent by the Company.
95. Every officer or agent of the Company has such powers and authority of
the directors, including the power and authority to affix the Seal, as
are set forth in these Articles or in the resolution of directors
appointing the officer or agent, except that no officer or agent has any
power or authority with respect to the matters requiring a resolution of
directors under the Act.
96. Any director which is a body corporate may appoint any person its duly
authorized representative for the purpose of representing it at meetings
of the Board of Directors or with respect to unanimous written consents.
97. The continuing directors may act notwithstanding any vacancy in their
body, save that if their number is reduced to their knowledge below the
number fixed by or pursuant to these Articles as the necessary quorum
for a meeting of directors, the continuing directors or director may act
only for the purpose of appointing directors to fill any vacancy that
has arisen or for summoning a meeting of members.
98. The directors may by resolution of directors exercise all the powers of
the Company to borrow money and to mortgage or charge its undertakings
and property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for any
debt, liability or obligation of the Company or of any third party.
99. 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 shall from time to time
be determined by resolution of directors.
l00. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other
encumbrances in which there shall be entered the following particulars
regarding each mortgage, charge and other encumbrance:
(a) the sum secured;
(b) the assets secured;
(c) the name and address of the mortgagee, chargee or other
encumbrancer;
(d) the date of creation of the mortgage, charge or other encumbrance;
and
(e) the date on which the particulars specified above in respect of
the mortgage, charge or other encumbrance are entered in the
register.
l0l. The Company may further determine by a resolution of directors to
register a copy of the register of mortgages, charges or other
encumbrances with the Registrar of Companies.
PROCEEDINGS OF DIRECTORS
102. The directors of the Company or any committee thereof may meet at such
times and in such manner and places within or outside the British Virgin
Islands as the directors may determine to be necessary or desirable.
103. A director shall be deemed to be present at a meeting of directors if
he participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
104. A director shall be given not less than 3 days notice of meetings of
directors, but a meeting of directors held without 3 days notice having
been given to all directors shall be valid if all the directors entitled
to vote at the meeting who do not attend, waive notice of the meeting
and for this purpose, the presence of a director at a meeting shall
constitute waiver on his part. The inadvertent failure to give notice
of a meeting to a director, or the fact that a director has not received
the notice, does not invalidate the meeting.
105. A director may by a written instrument appoint an alternate who need not
be a director and an alternate is entitled to attend meetings in the
absence of the director who appointed him and to vote or consent in
place of the director.
106. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate
not less than one-half of the total number of directors, unless there
are only 2 directors in which case the quorum shall be 2.
107. If the Company shall have only one director the provisions herein
contained for meetings of the directors shall not apply but such sole
director shall have full power to represent and act for the Company in
all matters as are not by the Act or the Memorandum or these Articles
required to be exercised by the members of the Company and in lieu of
minutes of a meeting shall record in writing and sign a note or
memorandum of all matters requiring a resolution of directors. Such a
note or memorandum shall constitute sufficient evidence of such
resolution for all purposes.
108. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of
the Board of Directors or if the Chairman of the Board of Directors is
not present at the meeting the Vice-Chairman of the Board of Directors
shall preside. If there is no Vice-Chairman of the Board of
Directors or if the Vice-Chairman of the Board of Directors is not
present at the meeting the directors present shall choose some one of
their number to be chairman of the meeting.
109. An action that may be taken by the directors or a committee of directors
at a meeting may also be taken by a resolution of directors or a
committee of directors consented to in writing or by telex, telegram,
cable, facsimile or other written electronic communication by all
directors or all members of the committee as the case may be, without
the need for any notice. The consent may be in the form of
counterparts, each counterpart being signed by one or more directors.
110. The directors shall cause the following corporate records to be kept:
(a) minutes of all meetings of directors, members, committees of
directors, committees of officers and committees of members;
(b) copies of all resolutions consented to by directors,
members, committees of directors, committees of officers and
committees of members; and
(c) such other accounts and records as the directors by
resolution of directors consider necessary or desirable in
order to reflect the financial position of the Company.
111. The books, records and minutes shall be kept at the registered office of
the Company, its principal place of business or at such other place as
the directors determine.
112. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
113. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are
set forth in the resolution of directors establishing the committee,
except that no committee has any power or authority to amend the
Memorandum or these Articles, to appoint directors or fix their
emoluments, or to appoint officers or agents of the Company.
114. The meetings and proceedings of each committee of directors consisting
of 2 or more directors shall be governed mutatis mutandis by the
provisions of these Articles regulating the proceedings of directors so
far as the same are not superseded by any provisions in the resolution
establishing the committee.
OFFICERS
115. The Company may by resolution of directors appoint officers of the
Company at such times as shall be considered necessary or expedient.
Such officers may consist of a Chairman of the Board of Directors, a
Vice-Chairman of the Board of Directors, a President and one or more
Vice-Presidents, Secretaries and Treasurers and such other officers as
may from time to time be deemed desirable. Any number of offices may
be held by the same person.
116. The officers shall perform such duties as shall be prescribed at the
time of their appointment subject to any modification in such duties as
may be prescribed thereafter by resolution of directors or resolution of
members, but in the absence of any specific allocation of duties it
shall be the responsibility of the Chairman of the Board of Directors to
preside at meetings of directors and members, the Vice-Chairman to act
in the absence of the Chairman, the President to manage the day to day
affairs of the Company, the Vice-Presidents to act in order of seniority
in the absence of the President but otherwise to perform such duties as
may be delegated to them by the President, the Secretaries to maintain
the share register, minute books and records (other than financial
records) of the Company and to ensure compliance with all procedural
requirements imposed on the Company by applicable law, and the Treasurer
to be responsible for the financial affairs of the Company.
117. The emoluments of all officers shall be fixed by resolution of
directors.
118. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by
resolution of directors. Any vacancy occurring in any office of the
Company may be filled by resolution of directors.
CONFLICT OF INTERESTS
119. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest
or to whom any director is related, including as a director of that
other person, is void or voidable for this reason only or by reason only
that the director is present at the meeting of directors or at the
meeting of the committee of directors that approves the agreement or
transaction or that the vote or consent of the director is counted for
that purpose if the material facts of the interest of each director in
the agreement or transaction and his interest in or relationship to any
other party to the agreement or transaction are disclosed in good faith
or are known by the other directors.
l20. A director who has an interest in any particular business to be
considered at a meeting of directors or members may be counted for
purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
l2l. Subject to the limitations hereinafter provided the Company may
indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred
in connection with legal, administrative or investigative proceedings
any person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the fact
that the person is or was a director, an officer or a liquidator
of the Company; or
(b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was
acting for, another company or a partnership, joint venture, trust
or other enterprise.
122. The Company may only indemnify a person if the person acted honestly and
in good faith with a view to the best interests of the Company and, in
the case of criminal proceedings, the person had no reasonable cause to
believe that his conduct was unlawful.
123. The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the Company
and as to whether the person had no reasonable cause to believe that his
conduct was unlawful is, in the absence of fraud, sufficient for the
purposes of these Articles, unless a question of law is involved.
124. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself,
create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the Company or that the
person had reasonable cause to believe that his conduct was unlawful.
125. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
126. The Company may purchase and maintain insurance in relation to any
person who is or was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture,
trust or other enterprise, against any liability asserted against the
person and incurred by the person in that capacity, whether or not the
Company has or would have had the power to indemnify the person against
the liability as provided in these Articles.
SEAL
127. The Company may have more than one Seal and references herein to the
Seal shall be references to every Seal which shall have been duly
adopted by resolution of directors. The directors shall provide for the
safe custody of the Seal and for an imprint thereof to be kept at the
Registered Office. Except as otherwise expressly provided herein the
Seal when affixed to any written instrument shall be witnessed and
attested to by the signature of a director or any other person so
authorized from time to time by resolution of directors. Such
authorization may be before or after the Seal is affixed, may be general
or specific and may refer to any number of sealings. The Directors may
provide for a facsimile of the Seal and of the signature of any director
or authorized person which may be reproduced by printing or other means
on any instrument and it shall have the same force and validity as if
the Seal had been affixed to such instrument and the same had been
signed as hereinbefore described.
DIVIDENDS
128. The Company may by a resolution of directors declare and pay dividends
in money, shares, or other property, but dividends shall only be
declared and paid out of surplus. In the event that dividends are paid
in specie the directors shall have responsibility for establishing and
recording in the resolution of directors authorizing the dividends, a
fair and proper value for the assets to be so distributed.
129. 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.
130. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund,
and may invest the sum so set aside as a reserve fund upon such
securities as they may select.
131. No dividend shall be declared and paid unless the directors determine
that immediately after the payment of the dividend the Company will be
able to satisfy its liabilities as they become due in the ordinary
course of its business and the realizable value of the assets of the
Company will not be less than the sum of its total liabilities, other
than deferred taxes, as shown in its books of account, and its capital.
In the absence of fraud, the decision of the directors as to the
realizable value of the assets of the Company is conclusive, unless a
question of law is involved.
132. Notice of any dividend that may have been declared shall be given to
each member in manner hereinafter mentioned and all dividends unclaimed
for 3 years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
133. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of
which the Company holds, directly or indirectly, shares having more than
50 percent of the vote in electing directors.
134. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
135. In the case of a dividend of authorized but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
136. In the case of a dividend of authorized but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to
the amount that the shares are entitled to as a preference, if any, in
the assets of the Company upon liquidation of the Company.
137. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having
a proportionately smaller par value does not constitute a dividend of
shares.
ACCOUNTS AND AUDIT
138. The Company may by resolution of members call for the directors to
prepare periodically a profit and loss account and a balance sheet. The
profit and loss account and balance sheet shall be drawn up so as to
give respectively a true and fair view of the profit and loss of the
Company for the financial period and a true and fair view of the state
of affairs of the Company as at the end of the financial period.
139. The Company may by resolution of members call for the accounts to be
examined by auditors.
140. The first auditors shall be appointed by resolution of directors;
subsequent auditors shall be appointed by a resolution of members.
141. The auditors may be members of the Company but no director or other
officer shall be eligible to be an auditor of the Company during his
continuance in office.
142. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be fixed
by resolution of directors; and
(b) subject to the foregoing, shall be fixed by resolution of members
or in such manner as the Company may by resolution of members
determine.
143. The auditors shall examine each profit and loss account and balance
sheet required to be served on every member of the Company or laid
before a meeting of the members of the Company and shall state in a
written report whether or not
(a) in their opinion the profit and loss account and balance sheet
give a true and fair view respectively of the profit and loss for
the period covered by the accounts, and of the state of affairs of
the Company at the end of that period; and
(b) all the information and explanations required by the auditors have
been obtained.
144. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
145. Every auditor of the Company shall have a right of access at all times
to the books of account and vouchers of the Company, and shall be
entitled to require from the directors and officers of the Company such
information and explanations as he thinks necessary for the performance
of the duties of the auditors.
146. The auditors of the Company shall be entitled to receive notice of, and
to attend any meetings of members of the Company at which the Company's
profit and loss account and balance sheet are to be presented.
NOTICES
147. Any notice, information or written statement to be given by the Company
to members may be served in the case of members holding registered
shares in any way by which it can reasonably be expected to reach each
member or by mail addressed to each member at the address shown in the
share register and in the case of members holding shares issued to
bearer, in the manner provided in the Memorandum.
148. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its
registered office, or by leaving it with, or by sending it by registered
mail to, the registered agent of the Company.
149. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing
that the summons, notice, order, document, process, information or
written statement was delivered to the registered office or the
registered agent of the Company or that it was mailed in such time as to
admit to its being delivered to the registered office or the registered
agent of the Company in the normal course of delivery within the period
prescribed for service and was correctly addressed and the postage was
prepaid.
PENSION AND SUPERANNUATION FUNDS
150. The directors may establish and maintain or procure the establishment
and maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities, pensions, allowances or emoluments to, any
persons who are or were at any time in the employment or service of the
Company or any company which is a subsidiary of the Company or is allied
to or associated with the Company or with any such subsidiary, or who
are or were at any time directors or officers of the Company or of any
such other company as aforesaid or who hold or held any salaried
employment or office in the Company or such other company, or any
persons in whose welfare the Company or any such other company as
aforesaid is or has been at any time interested, and to the wives,
widows, families and dependents of any such person, and may make
payments for or towards the insurance of any such persons as aforesaid,
and may do any of the matters aforesaid either alone or in conjunction
with any such other company as aforesaid. Subject always to the
proposal being approved by resolution of members, a director holding any
such employment or office shall be entitled to participate in and retain
for his own benefit any such donation, gratuity, pension allowance or
emolument.
VOLUNTARY WINDING UP AND DISSOLUTION
151. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of director.
CONTINUATION
152. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
We, HWR SERVICES LIMITED, of Craigmuir Chambers, Road Town, Tortola,
British Virgin Islands for the purpose of incorporating an International
Business Company under the laws of the British Virgin Islands hereby subscribe
our name to these Articles of Association the ____ day of _____________ in the
presence of:
Witness Subscriber
......................... ............................
Craigmuir Chambers Authorized Signatory
Road Town, Tortola HWR Services Limited