Exhibit 3.3
BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ORDINANCE
(No. 8 of 1984)
MEMORANDUM OF ASSOCIATION
AND
ARTICLES OF ASSOCIATION
OF
TVA COMMUNICATIONS LTD.
Incorporated the 5th day of October, 1990.
SUCRE & SUCRE TRUST LIMITED
P.O. BOX 3163
CHERA CHAMBERS
ROAD TOWN
TORTOLA
BRITISH VIRGIN ISLANDS
ARTICLES OF ASSOCIATION
OF
TVA COMMUNICATIONS LTD.
INDEX
CLAUSE PAGES
1 Definitions and Interpretation.......................... 1
2 Registered Shares....................................... 1
3 Bearer Shares........................................... 2
4 Shares, Authorised Capital and Capital.................. 3
5 Transfer of Shares...................................... 4
6 Transmission of Shares.................................. 4
7 Reduction or Increase in Authorised Capital
or Capital............................................ 5
8 Meetings and Consents of Members........................ 5
9 Directors............................................... 7
10 Powers of Directors..................................... 8
11 Proceedings of Directors................................ 9
12 Officers................................................ 10
13 Conflict of Interests................................... 11
14 Indemnification......................................... 11
15 Seal.................................................... 12
16 Dividends............................................... 12
17 Accounts................................................ 13
18 Notices................................................. 13
19 Arbitration............................................. 13
20 Voluntary Winding Up and Dissolution.................... 14
21 Continuation............................................ 14
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ORDINANCE
(NO. 8 OF 1984)
MEMORANDUM OF ASSOCIATION
OF
TVA COMMUNICATIONS LTD.
1. NAME
The name of the Company is TVA COMMUNICATIONS LTD.
2. REGISTERED OFFICE
The Registered Office of the Company will be the offices of SUCRE & SUCRE
TRUST LIMITED, CHERA CHAMBERS, Road Town, Tortola, British Virgin Islands.
3. REGISTERED AGENT
The Registered Agent of the Company will be SUCRE & SUCRE TRUST LIMITED,
P.O. Box 3163, CHERA CHAMBERS, Road Town, Tortola, British Virgin Islands.
4. GENERAL OBJECTS AND POWERS
The object of the Company is to engage in any act or activity that is not
prohibited under any law for the time being in force in the British Virgin
Islands including but not limited to:
4.1 a) Invest, gather or subscribe the necessary capital to promote,
establish or develop enterprises and businesses;
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b) subscribe or promote subscription, buy, possess, hold, acquire
by any other means and sell, negotiate, guarantee, assign,
exchange and transfer by any other means, capital shares,
credits, obligations, securities, certificates of partnership
and any other title or document of any private, public or
semi-public corporation or juridical person and while being
owner of same, possess and exercise all the corresponding
rights and privileges;
c) To execute all kind of contracts, for itself or others and
specially trust contracts and for the administration of
stocks, credits, obligations, securities, certificates of
partnership and any other title or document of any corporation
or juridical persons;
d) To give or receive loans, with or without guarantees such as
mortgages, pledges and sureties;
e) To purchase or sell, charter, sail or operate ships and
vessels, as well as to execute all kind of marine contracts;
f) To do and perform all and everything necessary for the
attainment of any of the purposes stated in its Memorandum or
Articles of Association or any amendment of same or whatever
is necessary or convenient for the protection and benefit of
the corporation; and,
g) To carry on any lawful business whether not such business is
set forth in its Memorandum or Articles of Association or in
any amendment thereof.
4.2 The Company shall have all such powers as are permitted by law for
the time being in force in the British Virgin Islands, to perform
all acts and engage in all activities necessary or conducive to the
conduct or attainment of the objects of the company.
5. EXCLUSIONS
5.1 The Company may not:
5.1.1 carry on business with persons resident in the British Virgin
Islands;
5.1.2 own an interest in real property situated in the British
Virgin Islands, other than a lease referred to in paragraph
5.2.5 of sub-clause 5.2;
5.1.3 carry on banking business;
5.1.4 carry on business as an insurance or reinsurance company; or,
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5.1.5 carry on the business of providing the registered office for
companies.
5.2 For purposes of paragraph 5.1.1 of sub-clause 5.1, the Company shall
not be treated as carrying on business with persons resident in the
British Virgin Islands if:
5.2.1 it makes or maintains deposits with a person carrying on
banking business within the British Virgin Islands;
5.2.2 it makes or maintains professional contact with solicitors,
barristers, accountants, bookkeepers, trust companies,
administration companies, investment advisers or other similar
persons carrying on business within the British Virgin
Islands;
5.2.3 it prepares or maintains books and records within the British
Virgin Islands;
5.2.4 it holds, within the British Virgin Islands, meetings of its
directors or members;
5.2.5 it holds a lease of property for use as an office from which
to communicate with members or where books and records of the
Company are prepared or maintained;
5.2.6 it holds shares, debt obligations or other securities in a
company incorporated under the International Business
Companies Ordinance or under the Companies Act; or
5.2.7 shares, debt obligations or other securities in the Company
are owned by any person resident in the British Virgin Islands
or by any company incorporated under the International
Business Companies Ordinance or under the Companies Act.
6. SHARE CAPITAL
6.1 CURRENCY
Shares in the Company shall be issued in the currency of The United
States of America.
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6.2 AUTHORISED CAPITAL AND CLASSES OF SHARES
The authorised capital of the Company is Cr$900,000.00 divided into
900,000 shares of one class, of Cr$1.00 par value each.
6.2.1 The directors shall not allocate different rights as to
voting, dividends, redemption or distributions on liquidation
unless the Memorandum of Association shall have been amended
to create separate classes of shares and all the aforesaid
rights shall be identical in each separate class.
6.3 RIGHTS, QUALIFICATIONS OF SHARES
The directors shall by resolution have the power to issue any class
or series of shares that the Company is authorised to issue in its
capital, original or increased, with or subject to any designations,
powers, preferences, rights, qualifications, limitations and
restrictions.
6.4 REGISTERED OR BEARER SHARES
6.4.1 The directors may issue all or part of its authorised shares
either as registered shares or as shares to bearer.
6.4.2 Shares issued as registered shares may be exchanged for shares
issued to bearer and vice versa.
6.4.3 Notice to members with bearer shares shall be given to one or
more Special Agents for Service appointed by the Board of
Directors and notified to members upon the issue of their
shares. Service upon such Special Agent of any notice,
information or written statement required to be given to
members, constitute service upon the bearer of such shares
until such time as a new name and address for a Special Agent
for Service is appointed and notice thereof served on members
as provided herein. In the absence of such Agent it shall be
sufficient for the purposes of service for the Company to
publish the notice, information or written statement in one or
more newspapers published or circulated in the British Virgin
Islands and in such other place, if any, as the Company shall
from time to time by a resolution of directors or a resolution
or members determine.
6.5 TRANSFER OF SHARES
Registered shares in the Company may be transferred subject to the
prior or subsequent approval of the Company as evidenced by a
resolution of directors or by a resolution of members.
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6.6 PREFERENTIAL RIGHT
A preference is granted in favor of the members to buy the
corporation registered shares that the members wish to transfer,
preference that can be exercised by paying as price for said shares
their book value at the close of the fiscal period immediately
preceding. If there are two (2) or more members that wish to
exercise the preferences granted in the Memorandum and/or Articles
of Association, then each one may buy shares proportionally to the
number of shares that he already has to the number of shares
offered. All shares of the same class are equal, award the same
rights and are subject to the same obligations and restrictions.
7. AMENDMENTS
The Company may amend its Memorandum of Association and Articles of
Association by a resolution of members.
The directors may, however, amend the Memorandum of Association solely for
the purpose of changing the Registered Office.
We, the undersigned of the address stated below for the purpose of incorporating
an International Business under the laws of the British Virgin Islands hereby
subscribe our name to this Memorandum of Association the 5th day of October 1990
in the presence of the undersigned witness:
SIGNATURES
NAME AND ADDRESS OF WITNESS SUBSCRIBER
c/o P.O. Box 3163 SUCRE & SUCRE TRUST LIMITED
Chera Chambers P.O. BOX 3163
Road Town, Tortola, CHERA CHAMBERS
British Virgin Islands Road Town, Tortola
British Virgin Islands
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ORDINANCE
(No. 8 of 1984)
ARTICLES OF ASSOCIATION OF
TVA COMMUNICATIONS LTD.
1. DEFINITIONS AND INTERPRETATION
1.1 The meanings of words in the Memorandum of Association and Articles
of Association are as defined in the International Business
Companies Ordinance number 8 of 1984 as amended by the International
Business Companies Amendment Act of 1988.
1.2 Any words or expressions defined in the ordinance shall bear the
same meaning in these Articles.
1.3 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.
1.4 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.
1.5 A reference to money in these Articles is a reference to the
currency of the United States of America unless otherwise stated.
2. REGISTERED SHARES
2.1 The Company shall issue to every member holding registered or bearer
shares in the Company a certificate that must be:
a) Signed by two directors or two officers of the Company, or by
one director and one officer; or
b) Under the common seal of the Company, with or without the
signature of any director or officer of the Company.
2.2 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
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liability which it or they may incur by reason of the 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.
2.3 If several persons are registered as joint holders of any shares,
any one of such persons may be given an effectual receipt for any
dividend payable in respect of such shares.
3. BEARER SHARES
3.1 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 authorised by the Memorandum,
issue bearer shares to, and at the expense of, such person as shall
be specified in the request.
3.2 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 and unless the request is
delivered in person by the registered owner, it shall be
authenticated. The Company may also exchange bearer shares for
registered shares, but such request served on the Company by the
holder of bearer shares shall specify the name and address of the
person to be registered. Following such exchange the share
certificate relating to the exchanged shares shall be delivered as
directed by the member requesting the exchange.
3.3 Subject to the provisions of the Ordinance 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.
3.4 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 in the Company.
Without prejudice to the generality of the foregoing, the member,
instead of producing the certificate may, through the Special Agent
for Service, if one is appointed by the Board of Directors, exercise
his rights to requisition meetings, to be present in said meetings,
to vote, to be convened for meetings, to waive said right and to
receive the payment of dividends.
3.4.1 The Special Agent must certify to the Company that he is
holding the bearer share certificate, the number of the
certificate, the date of issue,
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the period of time for which he will be holding the share
certificate, which in the case of meetings must be a period of
at least three (3) days after the meeting is held.
3.5 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 authorised 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.
3.6 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 authorised 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 authorised 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.
3.7 If any bearer share certificate 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 be lost or
destroyed, the directors may upon the loss or destruction being
established to their satisfaction, and upon such indemnity 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 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.
4. SHARES, AUTHORISED CAPITAL AND CAPITAL
4.1 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 prejudice to 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
the shares to such persons, at such times and upon such terms and
conditions as the Company may by resolution of directors determine.
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4.2 Shares in the Company shall be issued for money, goods or services
rendered, or any combination of the foregoing as shall be determined
by a resolution of directors.
4.3 Shares in the Company may be issued for such amount or 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.
4.4 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.
4.5 The Company may not issue fractions of a share.
4.6 The Company may purchase, redeem or otherwise acquire and hold its
own shares but no purchase, redemption or other acquisition which
shall constitute a reduction in capital shall be made except in
compliance with the law.
4.7 Shares that the Company purchases, redeems or otherwise acquires
pursuant to sub-clause 4.6 may be cancelled or held as treasury
shares unless 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. Upon the cancellation of a
share, the amount included as capital of the Company with respect to
that share shall be deducted from the capital of the Company.
5. TRANSFER OF SHARES
5.1 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.
5.2 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.
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5.3 For the purpose of Section 55 of the International Business
Companies Ordinance, the Registered Agent shall have the same
benefits as any director, officer, agent and liquidator, with
respect to the same records therein mentioned or those under his
possession, save in the case of fraud.
6. TRANSMISSION OF SHARES
6.1 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 recognised 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 two sub-clauses.
6.2 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 be deemed to be a transfer of shares of the deceased,
incompetent or bankrupt member and the directors shall treat it as
such.
6.3 Any person who has became 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.
6.4 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.
7. REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
7.1 The Company may by a resolution of members amend the Memorandum to
increase or reduce its authorised capital and in connection
therewith the Company may in respect of any unissued shares increase
or reduce the number of shares, increase or reduce the par value of
any shares or effect any combination of the foregoing.
7.2 The Company may amend the Memorandum to:
7.2.1 divide the shares, including issued shares, of a class or
series into a larger number of shares of the same class or
series; or,
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7.2.2 combine the shares, including issued shares, of a class or
series into a smaller number of shares of the class or series;
provided, however, that where shares are divided or combined
under this section, the aggregate par value of the new shares
must be equal to the aggregate par value of the original
shares.
7.3 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, and, subject to the provisions of the Law, the capital of
the Company may be reduced by transferring an amount of the capital
of the Company to surplus.
8. MEETINGS AND CONSENTS OF MEMBERS
8.1 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.
8.2 Upon the written request of members holding 5 percent or more of the
outstanding voting shares in the Company the directors shall convene
a meeting of members.
8.3 The directors shall give not less than 15 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.
8.4 A meeting of members held in contravention of the requirement in
sub-clause 8.3 is valid if:
8.4.1 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 their presence at the meeting
shall be deemed to constitute waiver.
8.5 A member may be represented at a meeting of members by a proxy who
may speak and vote on behalf of the member.
8.6 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 in such instrument proposes to vote.
8.7 The following shall apply in respect of joint ownership of shares:
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8.7.1 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;
8.7.2 if only one of the joint owners is present in person or by
proxy he may vote on behalf of all joint owners, and;
8.7.3 if two or more of the joint owners are present in person or by
proxy they must vote as one.
8.8 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.
8.9 A meeting of members is duly constituted if, at the commencement and
throughout of the meeting, there are present in person or by proxy
not less than 51 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.
8.10 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.
8.11 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
someone 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.
8.12 Should the chairman 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 should 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.
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8.13 Any person other than an individual shall be regarded as one member
and subject to sub-clause 8.14 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.
8.14 Any person other than an individual which is a member of the Company
may by resolution of its directors or other governing body authorise
such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of members of the Company,
and the person so authorised shall be entitled to exercise the same
powers on behalf of the person which he represents as that person
could exercise if it were an individual member of the Company.
8.15 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.
9. DIRECTORS
9.1 The first directors of the Company shall be elected by the
subscribers to the Memorandum; and thereafter, the directors shall
be elected by the members for such terms as the members may
determine.
9.2 The minimum number of directors shall be one, and the maximum number
shall be fifteen.
9.3 Each director shall hold office for the term, if any, fixed by
resolution of members or until his earlier death, resignation or
removal.
9.4 A director may be removed from office, with or without cause by a
resolution of members.
9.5 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. The notice should be
addressed at least to the Registered Agent's office in the British
Virgin Islands.
9.6 A vacancy in the Board of Directors may be filled by a resolution of
members or by a resolution of a majority of the remaining directors.
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9.7 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.
9.8 A director need not be a member and may be an individual or a
company.
10. POWERS OF DIRECTORS
10.1 The business and affairs of the Company shall be managed by the
directors who shall pay all expenses incurred preliminary to and in
connection with the formation, registration and corporate matters
and may exercise all such powers of the Company as are not by the
Ordinance or by the Memorandum of these Articles required to be
exercised by the members of the Company, subject 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.
10.2 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.
10.3 Every officer or agent of the Company has such powers and authority
of the director, 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 fixing the
emoluments of directors.
10.4 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.
10.5 The continuing directors may act notwithstanding any vacancy in
their body, save that if their number is reduced below the number
fixed by or pursuant to these Articles as the necessary quorum for a
meeting of directors, until the vacancy is filled the continuing
directors or director may act only for the purpose of appointing
directors to fill any vacancy that has arisen or summoning a meeting
of members.
10.6 All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the
Company, shall be signed, drawn, accepted, endorsed or otherwise
executed, as the case may be, in such manner as shall from time to
time be determined by resolution of directors.
11. PROCEEDINGS OF DIRECTORS
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11.1 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.
11.2 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.
11.3 A director shall be given not less than 7 days' notice of meetings
of directors, but a meeting of directors held without 7 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.
11.4 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.
11.5 A meeting of directors is duly constituted for all purposes if at
the commencement and throughout the meeting there are present in
person or by alternate the majority of the total number of
directors, unless there are only 2 directors in which case the
quorum shall be 2.
11.6 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 Ordinance 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.
11.7 At every meeting of 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
someone of their number to be chairman of the meeting.
11.8 The directors shall cause the following corporate records to be
kept:
11.8.1 minutes of all meetings of directors, members,
committees of directors, committees of officers and
committees of members;
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11.8.2 copies of all resolutions consented to by directors,
members, committees of directors, committees of officers
and committees of members; and,
11.8.3 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.
11.9 The books, records and minutes shall be kept at the registered
office of the Company or at such other place as the directors
determine.
11.10 The directors may, by a resolution of directors, designate one or
more committees, each consisting of one or more directors.
11.11 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
either to amend the Memorandum or these Articles or with respect
to the matters requiring a resolution of directors under
sub-clauses 9.6, 9.7 and 10.2.
11.12 The meetings and proceedings of each committee of directors
consisting of 2 or more directors shall be governed 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.
12. OFFICERS
12.1 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 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.
12.2 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
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
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on the Company by applicable law, and the Treasurer to be
responsible for the financial affairs of the Company.
12.3 The emoluments of all officers shall be fixed by resolution of
directors.
12.4 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. The officers may resign in the same manner as the
directors.
13. CONFLICT OF INTERESTS
13.1 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.
13.2 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.
14. INDEMNIFICATION
14.1 Subject to sub-clause 14.2 the Company may indemnify against all
expenses, including legal fees, and against all judgements, fines
and amounts paid in settlement and reasonably incurred in
connection with legal, administrative or investigative proceedings
any person who:
14.1.1 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, Registered Agent or a
liquidator of the Company; or
14.1.2 is or was, at the request of the Company, serving as a
director, officer, Registered Agent or liquidator of or
in any other capacity
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is or was acting for another company or a partnership,
joint venture, trust or other enterprise.
14.2 Sub-clause 14.1 only applies to a person referred to in that
regulation 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.
14.3 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.
15. SEAL
The directors shall provide for the safe custody of the Seal. The Seal
when affixed to any written instrument shall, unless otherwise provided
herein, be witnessed by a director or any other person so authorised from
time to time by resolution of directors.
The directors may provide for a facsimile of the Seal and of the signature
of any director or authorised 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.
16. DIVIDENDS
16.1 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 authorising the dividends, a fair and proper value for
the assets to be so distributed.
16.2 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 apart as a reserve
fund upon such securities as they may select.
16.3 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.
16.4 No dividend shall bear interest as against the Company.
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16.5 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.
16.6 In the case of a dividend of authorised 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.
16.7 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.
16.8 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.
17. ACCOUNTS
The Company shall keep such accounts and records as the directors consider
necessary or desirable in order to reflect the financial position of the
Company.
18. NOTICES
18.1 Any notice, information or written statement to be given by the
Company to members must be served in the case of members holding
registered shares 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
and in these Articles.
18.2 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.
18.3 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 mailed in such time
as to admit to its being delivered in the normal course of
delivery within the period prescribed for service and was
correctly addressed and the postage was prepaid.
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19. ARBITRATION
19.1 Whenever any difference arises between the Company on the one hand
and any of the members or their executors, administrators or
assigns and/or directors, officers, or the Registered Agent on the
other hand, or between any of the above-mentioned touching the
true intent and construction or the incidence or consequences of
these Articles or of the Ordinance, touching anything done or
executed, omitted or suffered in pursuance of the Ordinance or
touching any breach or alleged breach, or otherwise relating to
the premises or to these Articles, or to any Act or Ordinance
affecting the Company or to any of the affairs of the Company such
difference shall, unless the parties agree to refer the same to a
single arbitrator, be referred to 2 arbitrators one to be chosen
by each of the parties to the difference and the arbitrators
shall, before entering on the reference, appoint an umpire.
19.2 If either party to the reference defaults in appointing an
arbitrator either originally or by way of substitution (in the
event that an appointed arbitrator shall die, be incapable of
acting or refuse to act) for 10 days after the other party has
given him notice to appoint the same, such other party may apply
before Court for the appointment of an arbitrator to act in the
place of the arbitrator of the defaulting party.
20. VOLUNTARY WINDING UP AND DISSOLUTION
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 directors.
21. CONTINUATION
The Company may by resolution of members or by 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, SUCRE & SUCRE TRUST LIMITED, of P.O. Box 3163, CHERA 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 the Articles of Association on this 5th day of the
month of October, 1990, in the presence of the undersigned witness.
SIGNATURES
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NAME AND ADDRESS OF WITNESS SUBSCRIBER
c/o P.O. Box 3163 SUCRE & SUCRE TRUST LIMITED
Chera Chambers P.O. BOX 3163
Road Town, Tortola, CHERA CHAMBERS
British Virgin Islands Road Town, Tortola
British Virgin Islands
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