Exhibit 3.02
THE COMPANIES LAW (1995 REVISION)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
NSM HOLDING COMPANY LIMITED
1. The name of the Company is NSM Holding Company Limited.
2. The Registered Office of the Company shall be at the offices of
Maples and Calder, Attorneys-at-Law, Ugland House, P.O. Box 309, George Town,
Grand Cayman, Cayman Islands, British West Indies or at such other place as the
Directors may from time to time decide.
3. The objects for which the Company is established are unrestricted and
shall include, but without limitation, the following:
(i)(a) To carry on the business of an investment company and to act as
promoters and entrepreneurs and to carry on business as
financiers, capitalists, concessionaires, merchants, brokers,
traders, dealers, agents, importers and exporters and to
undertake and carry on and execute all kinds of investment,
financial, commercial, mercantile, trading and other operations.
(b) To carry on whether as principals, agents or otherwise howsoever
the business of realtors, developers, consultants, estate
agents or managers, engineers, manufacturers, dealers in or
vendors of all types of property including services.
(ii) To exercise and enforce all rights and powers conferred by
or incidental to the ownership of any shares, stock, obligations or
other securities including without prejudice to the generality of the
foregoing all such powers of veto or control as may be conferred by
virtue of the holding by the, Company of some special proportion of the
issued or nominal amount thereof, to provide managerial and other
executive, supervisory and consultant services for or in relation to any
company in which the Company is interested upon such terms as may be
thought fit.
(iii) To purchase or otherwise acquire, to sell, exchange,
surrender, lease, mortgage, charge, convert, turn to account, dispose of
and deal with real and personal property and rights of all kinds and, in
particular mortgages, debentures, produce, concessions, options,
contracts, patents, annuities, licenses, stocks, shares, bonds,
policies, debts, business concerns, undertakings, claims, privileges and
chooses in action of all kinds.
(iv) To subscribe for, conditionally or unconditionally, to
underwrite, issue on commission or otherwise, take, hold, deal in and
convert stocks, shares and securities of all kinds and to enter into
partnership or into any arrangement for sharing profits, reciprocal
concessions or cooperation with any person or company and to promote and
aid in promoting, to constitute, form or compromise any company,
syndicate or partnership of any kind, for the purpose of acquiring and
undertaking any property and liabilities of the Company or of advancing,
directly or indirectly, the objects of the Company or for any other
purpose of which the Company may think expedient.
(v) To stand surety for or to guarantees support or secure the
performance of all or any of the obligations of any person, firm or
company whether or not related or affiliated to the Company in any
manner and whether by personal covenant or by mort-
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gage, charge or lien upon the whole or any part of the undertaking
property and assets of the Company, both present and future, including
its uncalled capital or by any such method and whether or not the
Company shall receive valuable consideration therefore.
(vi) To engage in or carry on any other lawful trade, business
or enterprise which may at any time appear to the Directors of the
Company capable of being conveniently carried on in conjunction with any
of the aforementioned businesses or activities or which may appear to
the Directors of the Company likely to be profitable to the Company.
In the interpretation of this Memorandum of Association in general and of this
Clause 3 in particular no object, business or power specified or mentioned shall
be limited or restricted by reference to or inference from any other object,
business or power, or the name of the Company, or by the juxtaposition of two or
more objects, businesses or powers and that, in the event of any ambiguity in
this clause or elsewhere in this Memorandum of Association, the same shall be
resolved by such interpretation and construction as will widen and enlarge and
not restrict the objects, businesses and powers of and exercisable by the
Company.
4. Except as prohibited or limited by the Companies Law (1995 Revision),
the Company shall have full power and authority to carry out any object and
shall have and be capable of from time to time and at all times exercising any
and all of the powers at any time or from time to time exercisable by a natural
person or body corporate in doing in any part of the world whether as principal,
agent, contractor or otherwise whatever may be considered by it necessary for
the attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereon, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in
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the manner set out in the Articles of Association of the Company, and the power
to do any of the following acts or things, viz:
to pay all expenses of and incidental to the promotion, formation and
incorporation of the Company; to register the Company to do business in any
other jurisdiction; to sell, lease or dispose of any property of the Company; to
draw, make, accept, endorse, discount, execute and issue promissory notes,
debentures, bills of exchange, bills of lading, warrants and other negotiable or
transferable instruments; to lend money or other assets and to act as
guarantors; to borrow or raise money on the security of the undertaking or on
all or any of the assets of the Company including uncalled capital or without
security; to invest monies of the Company in such manner as the Directors
determine; to promote other companies; to sell the undertaking of the Company
for cash or any other consideration; to distribute assets in specie to Members
of the Company; to make charitable or benevolent donations; to pay pensions or
gratuities or provide other benefits in cash or kind to Directors, officers,
employees, past or present and their families; to purchase Directors, officers,
liability insurance and to carry on any trade or business and generally to do
all acts and things which, in the opinion of the Company or the Directors, may
be conveniently or profitably or usefully acquired and dealt with, carried on,
executed or done by the Company in connection with the business aforesaid
PROVIDED THAT the Company shall only carry on the businesses for which a license
is required under the laws of the Cayman Islands when so licensed under the
terms of such laws.
5. The liability of each Member limited to the amount from time to time
unpaid on such Member's shares.
6. The share capital of the Company is US$10,000 divided into 1,000
shares of a nominal or par value of US$10,00 each with power for the Company
insofar as is permitted by
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law, to redeem or purchase any of its shares and to increase or reduce the said
capital subject to the provisions of the Companies Law (1995 Revision) and the
Articles of Association and to issue any part of its capital, whether original,
redeemed or increased with or without any preference, priority or special
privilege or subject to any postponement of rights or to any conditions or
restrictions and so that unless the conditions of issue shall otherwise,
expressly declare every issue of shares whether declared to be preference or
otherwise shall be subject to the powers hereinbefore, contained.
7. If the Company is registered as exempted, its operations will be
carried on subject to the provisions of Section 192 of the Companies Law (1995
Revision) and, subiect to the provisions of the Companies Law (1995 Revision)
and the Articles of Association, it shall have the power to register by way of
continuation as a body corporate limited by shares under the laws of any
jurisdiction outside the Cayman Islands and to be deregistered in the Cayman
Islands.
WE the several persons whose names and addresses are subscribed are
desirous of being formed into a company in pursuance of this Memorandum of
Association and we respectively agree to take the number of shares in the
capital of the Company set opposite our respective names.
DATED this ___ day of _____, 19__
SIGNATURE and ADDRESS NUMBER OF SHARES
OF EACH SUBSCRIBER TAKEN BY EACH
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Shaun Denton, Attorney-At-Law
P.O. Box 309, Grand Cayman One
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Adrian Pope, Attorney-At-Law
P.O. Box 309, Grand Cayman One
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Witness to the above signatures
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I, ______________________ Registrar of Companies in and for the
Cayman Islands HEREBY CERTIFY that this is a true and correct copy of the
Memorandum of Association of this Company duly incorporated on the ___ day of
________ 199_.
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THE COMPANIES LAW (1995 REVISION)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
NSM HOLDINGCOMPANY LIMITED
1. In the Articles Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context inconsistent therewith,
"Articles" mean these Articles as originally framed or as
from time to time altered by Special Resolution.
"Auditors" means the persons for the time being performing
the duties of auditors of the Company.
"Company" means the above-named Company.
"debenture" means debenture stock, mortgages, bonds and any
other such securities of the Company whether
constitute a charge on the assets of the Company
or not.
"Directors" means the directors for the time being of the
Company.
"dividend" includes bonus.
"Member" shall bear the meaning as ascribed to it in the
Statute.
"month" means calendar month.
"paid-up" means paid-up and/or credited as paid-up.
"registered office" means the registered office for the time being
of the Company.
"Seal" means the common seal of the Company and
includes every duplicate seal.
"Secretary" includes an Assistant Secretary and any person
appointed to perform the duties of Secretary of
the Company.
"share" includes a fraction of a share.
"Special Resolution" has the same meaning as in the Statute and
includes a resolution approved in writing as
described therein.
"Statute" means the Companies Law of the Cayman Islands as
amended and every statutory modification or
reenactment thereof for the time being in force.
"written" and
"in writing" includes all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa.
Words importing the masculine gender only include the feminine gender.
Words importing persons only include corporations.
2. The business of the Company may be commenced as soon after
incorporation as the Directors shall see fit, notwithstanding that part only of
the shares may have been allotted.
3. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and establishment of
the Company including the expenses of registration.
CERTIFICATES FOR SHARES
4. Certificates representing shares of the Company shall be in such form
as shall be determined by The Directors. Such certificates may be under Seal.
All certificates for shares shall be consecutively numbered or otherwise
identified and shall specify the shares to which they relate. The, name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered in the register of
Members of the Company. All certificates surrendered to the Company for transfer
shall be cancelled and no new certificate be issued until the former certificate
for a like number of shares have been surrendered and cancelled. The Directors
may authorize signature(s) affixed by some method or system of mechanical
process.
5. Notwithstanding Article 4 of these Articles, if a share certificate
be defaced, lost or destroyed, it may be renewed on payment of a fee of one
dollar (US$1.00) or such less sum and on such terms (if any) as to evidence and
indemnity and the, payment of the expenses incurred by the Company in
investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
6. Subject to the provisions, if any, in that behalf in the Memorandum
of Association and to any direction that may be given by the Company in general
meeting and without prejudice to any special rights previously conferred on the
holders of existing shares, the Directors may allot, issue, grant options over
or otherwise dispose of shares of the Company (including fractions of a share)
with or without preferred, deferred or other special rights or restrictions,
whether in regard to dividend, voting, return of capital or otherwise and to
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such persons, at such times and on such other terms as they think proper. The
Company shall not issue shares in bearer form.
7. The Company shall maintain a register of its Members and every person
whose name is entered as a Member in the register of Members shall be entitled
without payment to receive within two months after allotment or lodgement of
transfer (or within such other period as the conditions of issue shall provide)
one certificate for all his shares or several certificates each for one or more
of his shares upon payment of fifty cents (US$0.50) for every certificate after
the first or such less sum as the Directors shall from time to time determine
provided that in respect of a share or shares held jointly by several persons
the Company shall not be bound to issue more than one certificate for a share to
one of the several joint holders shall be sufficient delivery to all such
holders.
TRANSFER OF SHARES
8. The instrument of transfer of any share shall be in writing and shall
be executed by or on behalf of the transferor and the transferor shall be deemed
to remain the holder of a share until the name of the transferee is entered in
the register in respect thereof.
9. The Directors may in their absolute discretion decline to register
any transfer of shares without assigning any reason therefor. If the Directors
refuse to register a transfer they shall notify the transferee within two months
of such refusal.
10. The registration of transfers may be suspended at such time and for
such periods as the Directors may from time to determine, provided always that
such registration shall not be suspended for more than forty-five days in any
year.
REDEEMABLE SHARES
11. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are, or at the option
of the Company or the holder are, to be redeemed on such terms and in such
manner as the Company, before the issue of the shares, may by Special Resolution
determine.
(b) Subject to the provisions of the Statute and the Memorandum
of Association, the Company may purchase its own shares (including
fractions of a share), including any redeemable shares, provided that
the manner of purchase has first been authorized by the Company in
general meeting and may make payment therefor in any manner authorized
by the Statute, including out of capital.
VARIATION OF RIGHTS OF SHARES
12. If at any time the share capital of the Company is divided into
different classes of shares, the rights attached to any class (unless otherwise
provided by the terms of issue of the shares of that class) may, whether or not
the Company is being woundup, be varied with the consent in writing of the
holders of three-fourths of the issued shares of that class, or with the
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sanction of a Special Resolution passed at a general meeting of the holders of
the shares of that class.
The provisions of these Articles relating to general meeting shall apply
to every such general meeting of the holders of one class of shares except that
the necessary quorum shall be one person holding or representing by proxy at
least one-third of the issued shares of the class and that any holder of shares
of the class present in person or by proxy may demand a poll.
13. The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be
varied by the creation or issue of further shares ranking pari passu therewith.
COMMISSION ON SALE OF SHARES
14. The Company may in so far as the Statute from time to time permits
pay a commission to any person in consideration of his subscribing or agreeing
to subscribe whether absolutely or conditionally for any shares of the Company.
Such commissions may be satisfied by the payment of cash or the lodgement of
fully or partly paid-up shares or partly in one way and partly in the other. The
Company may also on any issue of shares pay such brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
15. No person shall be recognized by the Company as holding any share
upon any trust and the Company shall not be bound by or be compelled in any way
to recognize (even when having notice thereof) Any equitable, contingent,
future, or partial interest in any share, or any interest in any fractional part
of a share, or (except only as is otherwise provided by these Articles or the
Statute) any other rights in respect of any share except an absolute right to
the entirety thereof in the registered holder.
LIEN ON SHARES
16. The Company shall have a first and paramount lien and charge on all
shares (whether fully paid-up or not) registered in the name of a Member
(whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by such
Member or his estate, either alone or jointly with any other person, whether a
Member or not, but the Directors may at any time declare any share to be wholly
or in part exempt from the provisions of this Article. The registration of a
transfer of any such share shall operate as a waiver of the Company's lien (if
any) thereon. The Company's lien (if any) on a share shall extend to all
dividends or other monies payable in respect thereof,
17. The Company may sell, in such manner as the Directors think fit, any
shares on which the Company has a lien, but no sale shall be made unless a sum
in respect of which the lien exists is presently payable, nor until the
expiration of fourteen days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the lien exists as is
presently payable, has been given to the registered holder or holders for the
time being of the
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share, or the person, of which the Company has notice, entitled thereto by
reason of his death or bankruptcy.
18. To give effect to any such we the Directors may authorize some
person to transfer the shares sold to the purchaser thereof. The purchaser shall
be registered as the holder of the shares comprised in any such transfer, and he
shall not be bound to see to the application of the purchase money, nor shall
his title to the shares be affected by any irregularity or invalidity in the
proceedings in reference to the sale.
19. The proceeds of such sale shall be received by the Company and
applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject to a like
lien for sums not presently payable as existed upon the shares before the sale)
be paid to the person entitled to the shares at the date of the sale.
CALL ON SHARES
20. (a) The Directors may from time to time make calls upon the Members
in respect of any monies unpaid on their shares (whether on account of the
nominal value of the shares or by way of premium or otherwise) and not by the
conditions of allotment thereof made payable at fixed terms, provided the no
call shall be payable at less than one month from the date fixed for the payment
of the last preceding call, and each Member shall (subject to receiving at least
fourteen days notice specifying the time or times of payment) pay to the Company
at the time or times so specified the amount called on the shares. A call may be
revoked or postponed as the Directors may determine. A call may be made payable
by installments.
(b) A call shall be deemed to have been made at the time when
the resolution of the Directors authorizing such call was passed.
(c) The joint holders of a share shall be jointly and severally
liable to pay all calls in respect thereof.
21. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall pay
interest on the sum from the day appointed for payment thereof to the time of
actual payment at such rate not exceeding ten per cent per annum as the
Directors may determine, but the Directors shall be at liberty to waive payment
of such interest either wholly or in part.
22. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of the
share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a can duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest forfeiture or otherwise shall apply as if such sum had become payable
by virtue of a call duly made and notified.
23. The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
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24. (a) The Directors may, if they think fit, receive from any Member to
advance the same, all or any of the monies uncalled and unpaid upon any s hares
held by him, and upon all or any of the monies so advanced may (until the same
would but for such advances, become payable) pay interest at such rate not
exceeding (unless the Company in general meeting shall otherwise direct) seven
per cent per annum, as may be agreed upon between the Directors and the Member
paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the
Member paying such sum to any portion of a dividend declared in respect
of any period prior to the date upon which such sum would, but for such
payment, become presently payable.
FORFEITURE OF SHARES
25. (a) If a Member fails to pay any call or installment of a call or to
make any payment required by the terms of issue on the day appointed for payment
thereof, the Directors may, at any time thereafter during such time as any part
of the call, installment or payment remains unpaid, give notice requiring
payment of so much of the call, installment or payment as is unpaid, together
with any interest which may have accrued and all expenses that have been
incurred by the Company by reason of such nonpayment, Such notice shall name a
day (not earlier than the expiration of fourteen days from the date of giving of
the notice) on or before which the payment required by the notice is to be made,
and shall state that, in the event of nonpayment at or before the time appointed
the shares in respect of which such notice was given will be liable to be
forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been may at
the time thereafter, before the payment required by the notice has been
given may at any time thereafter, before the payment required by the
notice has been made, be forfeited by a resolution of the Directors to
that effect. Such forfeiture shall include all dividends declared in
respect of the forfeited share and not, actually paid before the
forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on
such terms and in such manner as the Directors think fit and at any time
before a sale or disposition the forfeiture may be canceled on such
terms as the Directors think fit.
26. A person whose shares have been forfeited shall cease to be a Member
in respect of the, forfeited shares, but shall, notwithstanding, remain liable
to pay to the Company all monies which, at the date of forfeiture were payable
by him to the Company in respect of the shares together with interest thereon,
but his liability shall cease if and when the Company shall have received
payment in full of all monies whenever payable in respect of the shares.
27. A certificate in writing under the hand of one Director or the
Secretary of the Company that a share in the Company has been duly forfeited on
a date stated in the declaration shall be conclusive evidence of the fact
therein stated as against all persons claiming to be entitled to the share. The
Company may receive the consideration given for the share on any sale or
disposition thereof and may execute a transfer of the share in favor of the
person to whom the
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share is sold or disposed of and he shall thereupon be registered as the holder
of the share and shall not be bound to see to the application of the purchase
money, if any, nor shall his title to the share be affected by any irregularity
or invalidity in the proceedings in reference to the forfeiture, sale or
disposal of the share.
28. The provisions of these Articles as to forfeiture shall apply in the
case of nonpayment of any sum which, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the share or
by way of premium as if the same had been payable by virtue of a call duly made
and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
29. The Company shall be entitled to charge a fee not exceeding one
dollar (US$1.00) on the registration of every probate, letters of
administration, certificate of death or marriage, power of attorney, notice in
lieu of distringas, or other instrument.
TRANSMISSION OF SHARES
30. In case of the death of a Member, the survivor or survivors where
the deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognized by the
Company as having any title to his interest in the shares, but nothing herein
contained shall release the estate of any such deceased holder from any
liability in respect of any shares which had been held by him solely or jointly
with other persons.
31. (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy or liquidation or dissolution of a Member (or in any other
way than by transfer) may, upon such evidence being produced as may from time to
time be required by the Directors and subject as hereinafter provided, elect
either to be registered himself as holder of the share or to make such transfer
of the shares to such other person nominated by him as the deceased or bankrupt
person could have made and to have such person registered as the transferee
thereof, but the Directors shall, in either case, have the same right to decline
or suspend registration as they would have had in the case of a transfer of the
share by that Member before his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be
registered himself as holder he shall deliver or send to the Company a
notice in writing signed by him stating that he so elects.
32. A person becoming entitled to a share by reason of the death or
bankruptcy or liquidation or dissolution of the holder (or in any other case
than by transfer) shall be entitled to the same dividends and other advantages
to which be would be entitled if he were the registered holder of the share,
except that he shall not, before being registered as a Member in respect of the
share, be entitled in respect of it to exercise any right conferred by
membership in relation to meetings of the Company PROVIDED HOWEVER that the
Directors may at any time give notice requiring any such person to elect either
to be registered himself or to transfer the share
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and if the notice is not compiled with within ninety days the Directors may
thereafter withhold payment of all dividends bonuses or other monies payable in
respect of the shares until the requirements of the notice have been complied
with,
AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE & ALTERATION OF CAPITAL
33. (a) Subject to and in so far as permitted by the provisions of the
Statute, the Company may from time to time by ordinary resolution alter or amend
its Memorandum of Association otherwise than with respect to its name and
objects and may, without restricting the generality of the foregoing:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution
shall prescribe and with such rights, priorities and privileges
annexed thereto, as the Company in general meeting may
determine.
(ii) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the
whole or any part of its chart capital into shares of smaller
amount than is fixed by the Memorandum of Association or into
shares without nominal or par value;
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person.
(b) All new shares created hereunder shall be subject to the
same provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original
share capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution change its name or alter its objects.
(d) Without prejudice to Article 11 hereof and subject to the
provisions of the Statute, the Company may by Special Resolution reduce
its share capital and any capital redemption reserve fund.
(e) Subject to the provisions of the Statute, the Company may by
resolution of the Directors change the location of its registered
office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
34. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any adjournment thereof, or Members entitled
to receive payment of any dividend, or in order to make a determination of
Members for any other proper purpose, the Directors of the Company may provide
the register of Members shall be closed for transfers for a
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stated but not to exceed in any case forty days. If the register of Members
shall be so closed for the purpose of determining Members entitled to notice of
or to vote at a meeting of Members such register shall be so closed for at least
ten days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the register of Members.
35. In lieu of or apart from closing the register of Members, the
Directors may fix in advance a date as the record date for any such
determination of Members entitled to notice of or to vote at a meeting of the
Members and for the purpose of determining the Members entitled to receive
payment of any dividend the Directors may, at or within 90 days prior to the
date of declaration of such dividend fix a subsequent date as the record date
for such determination.
36. If the register of Members is not so closed and no record date is
fixed for the determination of Members entitled to notice of or to vote at a
meeting of Members or Members entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case may
be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has been
made as provided in this section, such determination shall apply to any
adjournment thereof.
37. (a) Subject to paragraph (c) hereof, the Company shall within one
year of its incorporation and in each year of its existence thereafter hold a
general meeting as its annual general meeting and shall specify the meeting as
such in the notices calling it. The annual general meeting shall be held at such
time and place as the Directors shall appoint and if no other time and place is
prescribed by them, it shall be held at the registered office on the second
Wednesday in December of each year at ten o'clock in the morning.
(b) At these meetings the report of the Directors (if any) shall
be presented.
(c) If the Company is exempted as defined in the Statute it may
but shall not be obliged to hold an annual general meeting.
38. (a) The Directors may whenever they think fit, and they shall on the
requisition of Members of the Company holding at the date of the deposit of the
requisition not less than one-tenth of such of the paid-up capital of the
Company as at the date of the deposit carries the right of voting at general
meetings of the Company, proceed to convene a general meeting of the Company.
(b) The requisition must state the objects of the meeting and
must be signed by the requisitionists and deposited at the registered
office of the Company and may consist of several documents in like form
each signed by one or more requisitionists.
(c) If the Directors do not within twenty-one days from the date
of the deposit of the requisition duly proceed to convene a general
meeting, the requisitionists, or any of them representing more than
one-half of the total voting rights of all of them, may themselves
convene a general meeting, but any meeting so convened shall not be held
after the expiration of three months after the expiration of the said
twenty-one days.
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(d) A general meeting convened as aforesaid by requisitionists
shall be convened in the same manner as nearly as possible as that in
which general meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
39. At least five days' notice shall be given of an annual general
meeting or any other general meeting. Every notice shall be exclusive of the day
on which it is given or deemed to be given and of the day for which it is given
and shall specify the place, the day and the hour of the meeting and the general
nature of the business and shall be given in manner hereinafter mentioned or in
such other manner if any as may be prescribed by the Company PROVIDED that a
general meeting of the Company shall, whether or not the notice specified in
this regulation has been given and whether or not the provisions of Article 38
have been compiled with, be deemed to have been duly convened if it is so
agreed:
(a) in the case of a general meeting called as an annual general
meeting by all the Members entitled to attend and vote thereat
or theirs proxies; and
(b) in the case of any other general meeting by a majority in number
of the members having a right to attend and vote at the meeting,
being a majority together holding not less than seventyfive per
cent in nominal value or in the case of shares without nominal
or par value seventyfive per cent of the shares in issue, or
their proxies.
40. The accidental omission to give notice of a general meeting to, or
the nonreceipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
41. No business shall be transacted at any general meeting unless a
quorum of Members is present at the time when the meeting proceeds to business;
two Members present in person or by proxy shall be a quorum provided always that
if the Company has one Member of record the quorum shall be that one Member
present in person or by proxy.
42. A resolution (including a Special Resolution) in writing (in one or
more counterparts) signed by all Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations by
their duly authorized representatives) shall be as valid and effective as if the
same had been passed at a general meeting of the Company duly convened and held.
43. If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting, if convened upon the requisition of Members,
shall be dissolved and in any other case it shall stand adjourned to the same
day in the next week at the same time and place or to such other time or such
other place as the Directors may determine and if at the adjourned
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meeting a quorum is not present within half an hour from the time appointed for
the meeting the Members present shall be a quorum.
44. The Chairman, if any, of the Board of Directors shall preside as
Chairman at every general meeting of the Company, or if there is no such
Chairman, or if he shall not be present within fifteen minutes after the time
appointed for the holding of the meeting, or is unwilling to act, the Directors
present shall elect one of their number to be Chairman of the meeting.
45. If at any general meeting no Director is willing to act as Chairman
or if no Director is present with fifteen minutes after the time appointed for
holding the meeting, the Members present shall choose one of their number to be
Chairman of the meeting.
46. The Chairman may, with the consent of any general meeting duly
constituted hereunder, and shall if so directed by the meeting, adjourn the
meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place. When a general meeting is
adjourned for thirty days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting; save as aforesaid it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned general meeting.
47. At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands unless a poll is, before or on the
declaration of the result of the show of hands, demanded by the Chairman or any
other Member present in person or by proxy.
48. Unless a poll be so demanded a declaration by the Chairman that a
resolution has on a show of hands been carried, or carried unanimously, or by a
particular majority, or lost, and an entry to that effect in the Company's
Minute book containing the Minutes of the proceedings of the meeting shall be
conclusive evidence of the fact without proof of the number or proportion of the
votes recorded in favour of or against such resolution.
49. The demand for a poll may be withdrawn.
50. Except as provided in Article 52, if a poll is duly demanded it
shall be taken in such manner as the Chairman directs and the result of the poll
shall be deemed to be the resolution of the general meeting at which the poll
was demanded.
51. In the case of an equality of votes, whether on a show of hands or
on a poll, the Chairman of the general meeting at which the show of hands takes
place or at which the poll is demanded, shall be entitled to a second or casting
vote.
52. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs and
any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
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VOTES OF MEMBERS
53. Subject to any rights or restrictions for the time being attached to
any class or classes of shares, on a show of hands every Member of record
present in person or by proxy at a general meeting shall have one vote and on a
poll ever Member of record present in person or proxy shall have one vote for
each share registered in his name in the register of Members.
54. In the case of joint holders of record the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of Members.
55. A Member of unsound mind, or in respect of whom an order has been
made by any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other person
in the nature of a committee, receiver or curator bonis appointed by that court,
and any such committee, receiver, curator bonis or other persons may vote by
proxy.
56. No Member shall be entitled to vote at any general meeting unless he
is registered as a shareholder of the Company on the record date for such
meeting nor unless all calls or other sums presently payable by him in respect
of shares in the Company have been paid.
57. No objection shall be raised to the qualification of any voter
except at the general meeting or adjourned general meeting at which the vote
objected to is given or tendered and every vote not disallowed at such general
meeting shall be valid for all purposes. Any such objection made in due time
shall be referred to the Chairman of the general meeting whose decision shall be
final and conclusive.
58. On a poll or on a show of hands votes may be given either personally
or by proxy.
PROXIES
59. The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or of his attorney duly authorized in
writing, or, if the appointor is a corporation under the hand of an officer or
attorney duly authorized in that behalf. A proxy need not be a Member of the
Company.
60. The instrument appointing a proxy shall be deposited at the
registered office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting provided that the Chairman of the Meeting may
at his discretion direct that an instrument of proxy shall be deemed to have
been duly deposited upon receipt of telex, cable or telecopy confirmation from
the appointor that the instrument of proxy duly signed is in the course of the
transmission to the Company.
61. The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment thereof
or generally until revoked.
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An instrument appointing a proxy shall be deemed to include the power to demand
or join or concur in demanding a poll.
62. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal
or revocation of the proxy or of the authority under which the proxy was
executed, or the transfer of the share in respect of which the proxy is given
provided that no intimation in writing of such death, insanity, revocation or
transfer as aforesaid shall have been received by the Company at the registered
office before the commencement of the general meeting, or adjourned meeting at
which it is sought to use the proxy.
63. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision 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 corporation which he represents as the
corporation could exercise if it were an individual Member of record of the
Company.
64. Shares of its own capital belonging to the Company or held by it in
a fiduciary capacity shall not be voted, directly or indirectly, at any meeting
and shall not be counted in determining the total number of outstanding shares
at any given time.
DIRECTORS
65. There shall be a Board of Directors consisting of not less than on
or more than ten persons (exclusive of alternate Directors) PROVIDED HOWEVER
that the Company may from time to time by ordinary resolution increase or reduce
the limits in the number of Directors. The first Directors of the Company shall
be determined in writing by, or appointed by a resolution of, the subscribers of
the Memorandum of Association or a majority of them.
66. The remuneration to be paid to the Directors shall be such
remuneration as the Directors shall determine. Such remuneration shall be deemed
to accrue from day to day. The Directors shall also be entitled to be paid their
traveling, hotel and other expenses properly incurred by them in going to,
attending and returning from meetings of the Directors, or any committee of the
Directors, or general meetings of the Company, or otherwise in connection with
the business of the Company, or to receive a fixed allowance in respect thereof
as may be determined by the Directors from time to time, or a combination partly
of one such method and partly the other.
67. The Directors may by resolution award special remuneration to any
Director of the Company undertaking any special work or services for, or
undertaking any special mission on behalf of, the Company other than his
ordinary routine work as a Director. Any fees paid to a Director who is also
counsel or solicitor to the Company, or otherwise serves it in a professional
capacity shall be in addition to his remuneration as a Director.
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68. A Director or alternate Director may hold any other office or place
of profit under the Company (other than the office of Auditor) in conjunction
with his office of Director for such period and on such terms as to remuneration
and otherwise as the Directors may determine.
69. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled to
remuneration for professional services as if he were not a Director or alternate
Director.
70. A shareholding qualification for Directors may be fixed by the
Company in general meeting, but unless and until so fixed no qualification shall
be required.
71. A Director or alternate Director of the Company may be or become a
director or other officer of or otherwise interested in any company promoted by
the Company or in which the Company may be interested as shareholder or
otherwise and no such Director or alternate Director shall be accountable to the
Company for any remuneration or other benefits received by him as a director or
officer of, or from his interest in, such other company.
72. No person shall be disqualified from the office of Director or
alternate Director or prevented by such office from contracting with the
Company, either as vendor, purchaser or otherwise, nor shall any such contract
or any contract or transaction entered into by or on behalf of the Company in
which any Director or alternate Director shall be in any way interested be or be
liable to be avoided, nor shall any Director or alternate Director so
contracting or being so interested be liable to account to the Company for any
profit realised by any such contract or transaction by reason of such Director
holding office or of the fiduciary relation thereby established. A Director (or
his alternate Director in his absence) shall be at liberty to vote in respect of
any contract or transaction in which he is so interested as aforesaid PROVIDED
HOWEVER that the nature of the interest of any Director or alternate Director in
any such contract or transaction shall be disclosed by him or the alternate
Director appointed by him at or prior to its consideration any vote thereon.
73. A general notice that a Director or alternate Director is a
shareholder of any specified firm or company and is to be regarded as interested
in any transaction with such firm or company shall be sufficient disclosure
under Article 72 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE DIRECTORS
74. Subject to the exception contained in Article 82, a Director who
expects to be unable to attend Directors' Meetings because of absence, illness
or otherwise may appoint any person to be an alternate Director to act in his
stead and such appointee whilst he holds office as an alternate Director shall,
in the event of absence therefrom of his appointor, be entitled to attend
meetings of the Directors and to vote thereat and to do, in the place and stead
of his appointor, any other act or thing which his appointor is permitted or
required to do by virtue of his being a Director as if the alternate Director
were the appointor, other than appointment of an alternate to himself, na dhe
shall ipso facto vacate office if and when his appointor ceases to be a Director
or
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removes the appointee from office. Any appointment or removal under this Article
shall be effected by notice in writing under the hand of the Director making the
same.
POWERS AND DUTIES OF DIRECTORS
75. The business of the Company shall be managed by the Directors (or a
sole Director if only one is appointed) who may pay all expenses incurred in
promoting, registering and setting up the Company, and may exercise all such
powers of the Company as are not, from time to time by the Statute, or by these,
or such regulations, being not inconsistent with the aforesaid, as may be
prescribed by the Company in general meeting required to be exercised by the
Company in general meeting PROVIDED HOWEVER that no regulations made by the
Company in general shall invalidate any prior act of the Directors which would
have been valid if that regulation had not been made.
76. The Directors may from time to time and at any time by powers of
attorney appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys of the
Company for such purpose and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Directors under these Articles)
and for such period and subject to such conditions as they may think fit, and
any such powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorneys as the Directors may
think fit and may also authorise any such attorney to delegate all or any of the
powers, authorities and discretions vested in him.
77. 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 the Directors shall from time to time by resolution determine.
78. The Directors shall cause minutes to be made in books provided for
the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented
thereat by an alternate or by proxy) present at each meeting of
the Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the
Company and of the Directors and of committees of Directors.
79. The Directors on behalf of the Company may pay a gratuity or pension
or allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or dependants and may
take contributions to any fund and pay premiums for the purchase or provision of
any such gratuity, pension or allowance.
80. The Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property and uncalled capital
or any part thereof and to
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issue debentures, debenture stock and other securities whether outright or as
security for any debt, liability or obligation of the Company or of any third
party.
MANAGEMENT
81. (a) The Directors may from time to time provide for the management
of the affairs of the Company in such manner as they shall think fit and the
provisions contained in the three next following paragraphs shall be without
prejudice to the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may
establish any committees, local boards or agencies for managing any of
the affairs of the Company and may appoint any persons to be members of
such committees or local boards or any managers or agents and may fix
their remuneration.
(c) The Directors from time to time and at any time may delegate
to any such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the Directors
and may authorise the members for the time being of any such local
board, or any of them to fill up any vacancies therein and to act
notwithstanding vacancies and any such appointment or delegation may be
made on such terms and subject to such conditions as the Directors may
think fit and the Directors may at any time remove any person so
appointed and may annul or vary any such delegation, but no person
dealing in good faith and without notice of any such annulment or
variation shall be affected thereby .
(d) Any such delegates as aforesaid may be authorised by the
Directors to subdelegate all or nay of the powers, authorities, and
discretions for the time being vested in them.
MANAGING DIRECTORS
82. The Directors may, from time to time, appoint one or more of their
body (but not an alternate Director) to the office of Managing Direct or for
such terms and at such remuneration (whether by way of salary, or commission, or
participation in profits, or party in one way and partly in another) as they may
think fit but for his appointment shall be subject to determination ipso facto
if he ceases from any time to be a Director and no alternate Director appointed
by him can act in his stead as a Director Managing Director.
83. The Directors may entrust to and confer upon a Managing Director any
of the powers exercisable by them upon such terms and conditions and with such
restrictions as they may think fit and either collaterally with or to the
exclusion of their own powers and may from time to time revoke, withdraw, alter
or vary all or any of such powers.
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PROCEEDINGS OF DIRECTORS
84. Except as otherwise provided by these Articles, the Directors shall
meet together for the dispatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising at any meeting
shall be decided by a majority of votes of the Directors and alternate Directors
present at a meeting at which there is a quorom, the vote of an alternate
Director not being counted if his appointor be present at such meeting. In case
of an equality of votes, the Chairman shall have a second or casting vote.
85. A Director or alternate Director may, and the Secretary on the
requisition of a Director shall, at any time summon a meeting of the Directors
by at least two days' notice in writing to every Director and alternate Director
which notice shall set forth the general nature of the business to be considered
unless notice is waived by all the Directors (or their alternates) either at,
before or after the meeting is held and PROVIDED FURTHER if notice is given in
person, by cable, telex, or telecopy the same shall be deemed to have been given
on the day it is delivered to the Directors or transmitting organization the
case may be. The provisions of Article 40 shall apply mutatis mutandis with
respect to notices of meetings of Directors.
86. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors and unless so fixed shall be two, a
Director and his appointed alternate Director being considered only one person
for this purpose, PROVIDED ALWAYS that if there shall at any time be only a sole
Director the quorum shall be one. For the purposes of this Article an alternate
Director or proxy appointed by a Director shall be counted in a quorum at a
meeting at which the Director appointing him is not present.
87. The continuing Directors may act notwithstanding any vacancy in
their body, but if and so long as their number is reduced below the number fixed
by or pursuant to these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to that number, or of summoning a general meeting of the
Company, but for no other purpose.
88. The Directors may elect a Chairman of their Board and determine the
period for which he is to hold office; but if no such Chairman is elected, or if
at any meeting the Chairman is not present within five minutes after the time
appointed for holding the same, the Directors present may choose one of their
number to be Chairman of the meeting.
89. The Directors may delegate any of their powers to committees
consisting of such member or members of the Board of Directors (including
Alternate Directors in the absence of their appointors) as they think fit; any
committee so formed shall in the exercise of the powers so delegated conform to
any regulations that may be imposed on it by the Directors.
90. A committee may meet and adjourn as it thinks proper. Questions
arising at any meeting shall be determined by a majority of votes of the members
present, and in the case of an equality of votes the Chairman shall have a
second or casting vote.
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91. All acts done by any meeting of the Directors or of a committee of
Directors (including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was some defect in
the appointment of any Director or alternate Director, or that they or any of
them were disqualified, be as valid as if every such person bad been duly
appointed and qualified to be a Director or alternate Director as the case may
be.
92. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting. A resolution in writing (in one, or more counterparts), signed by all
the Directors for the time being or all the members of a committee of Directors
(an alternate Director being entitled to sign such resolution on behalf of his
appointor) shall be as valid and effectual as if it had been passed at a meeting
of the Directors or committee as the case may be duly convened and held.
93. (a) A Director may be represented at any meetings of the Board of
Directors by a proxy appointed by him in which event the presence or vote of the
proxy shall for all purposes be deemed to be that of the Director.
(b) The provisions of Articles 59-62 shall mutatis mutandis apply to the
appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
94. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns
the office of Director;
(b) if he absents himself (without being represented by proxy or
an alternate Director appointed by him) from three consecutive meetings
of the Board of Directors without special leave of absence from the
Directors, and they pass a resolution that he has by reason of such
absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or
composition with his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
95. The Company may by ordinary resolution appoint any person to be a
Director and may in like manner remove any Director and may in like manner
appoint another person in his stead.
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96. The Directors shall have power at any time and from time to time to
appoint any person to be a Director, either to fill a casual vacancy or as an
addition to the existing Directors but so that the total amount of Directors
(exclusive of alternate Directors) shall not at any time exceed the number fixed
in accordance with these Articles.
PRESUMPTION OF ASSENT
97. A Director of the Company who is present at a meeting of the Board
of Directors at which action on any Company matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
Minutes of the meeting or unless he shall file his written dissent from such
action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to such
person immediately after the adjournment of the meeting. Such right to dissent
shall not apply to a Director who voted in favour of such action.
SEAL
98. (a) The Company may, if the Directors so determine, have a Seal
which shall, subject to paragraph (c) hereof, only be used by the authority of
the Directors or of a committee of the Directors authorized by the Directors in
that behalf and every instrument to which the Seal has been affixed shall be
signed by one person who shall be either a Director or the Secretary or
Secretary-Treasurer or some person appointed by the Directors for the purpose.
(b) The Company may have a duplicate Seal or Seals each of which
shall be a facsimile of the Common Seal of the Company and, if the
Directors so determine, with the addition on its face of the name of
every place where it is to be used.
(c) A Director, Secretary or other officer or representative or
a attorney may without further authority of the Directors affix the Seal
of the Company over his signature alone to any document of the Company
required to be authenticated by him under Seal or to be filed with the
Registrar of Companies in the Cayman Islands or elsewhere wheresoever.
OFFICERS
99. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such other
officers as they consider necessary, all for such terms, at such remuneration
and to perform such duties, and subject to such provisions as to
disqualification and removal as the Directors from time to time prescribe.
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DIVIDENDS, DISTRIBUTIONS AND RESERVE
100. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of the
Company outstanding and authorize payment of the same out of the funds of the
Company lawfully available therefore.
101. The Directors may, before declaring any dividends or distributions,
set aside such sums as they proper as a reserve or reserves which shall at the
discretion of the Directors, be applicable for any purpose of the Company and
pending such application may, at the like discretion, be employed in the
Business of the Company.
102. No dividend or distribution shall be payable except out of the
profits of the Company, realised or unrealised, or out of the share premium
account or as otherwise permitted by the Statute.
103. Subject to the rights of person, if any, entitled to shares with
special rights as to dividends or distributions, if dividends or distributions
are to be declared on a class of shares they shall be declared and paid
according to the amounts paid or credited as paid on the shares of such class
outstanding on the record date for such dividend or distribution as determined
in accordance with these Articles but no amount paid or credited as paid on a
share in advance of calls shall be treated for the purpose of this Article as
paid on the share.
104. The Directors may deduct from any dividend or distribution payable
to any Member all sums of money (if any) presently payable by him to the Company
on account of calls or otherwise.
105. The Directors may declare that any dividend or distribution be paid
wholly or partly by the distribution of specific assets and in particular of
paid up shares, debentures, or debenture stock of any other company or in any
one or more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and in
particular may issue fractional certificates and fix the value for distribution
of such specific assets or any part thereof and may determine that cash payments
shall be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all Members and may vest any such specific assets in
trustees as may seem expedient to the Directors.
106. Any dividend, distribution, interest or other monies payable in
cash in respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to such
person and to such address as such holder or joint holders may in writing
direct. Every such cheque or warrant shall be made payable to the order of the
person to whom it is sent. Any one of two or more joint holders may give
effectual receipts for any dividends, bonuses, or other monies payable in
respect of the share held by them as joint holders.
107. No dividend or distribution shall bear interest against the
Company.
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CAPITALIZATION
108. The Company may upon the recommendation of the Directors by
ordinary resolution authorise the Directors to capitalize any sum standing to
the credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the credit
of profit and loss account or otherwise available for distribution and to
appropriate such sum to Members in the proportions in which such sum would have
been divisible amongst them had the same been a distribution of profits by way
of dividend and to apply such sum on their behalf in paying up in full unissued
shares for allotment and distribution credited as fully paid up to and amongst
them in the proportion aforesaid. In such event the Directors shall do all acts
and things required to give effect to such capitalization, with full power to
the Directors to made such provisions as they think fit for the case of shares
becoming distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the Members
concerned). The Directors may authorise any person to enter on behalf of all of
the Members interested into an agreement with the Company providing for such
capitalization and matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
109. The Directors shall cause proper books of account to be kept with
respect to:
(a) all sums of money received and expended by the Company and
the matters in respect of which the receipt or expenditure takes place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be denied to be kept if there are not kept such books of
account as are necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
110. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the inspection
of Members not being Directors and no Member (not being a Director) shall have
the right of inspecting any account or book or document of the Company except as
conferred by Statute or authorised by the Directors by the Company in general
meeting.
111. The Directors may from time to time cause to be prepared and to be
laid before the Company in general meeting profit and loss accounts, balance
sheets, group accounts (if any) and such other reports and accounts as may be
required by law.
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AUDIT
112. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office, until the next annual general
meeting and may fix his or their remuneration.
113. The Directors may before the first annual general meeting appoint
an Auditor or Auditors of the Company who shall hold office until the first
annual general meeting unless previously removed, by an ordinary resolution of
the Members in general meeting in which case the Members at that meeting may
appoint Auditors. The Directors may fill any casual vacancy in the office of
Auditor but while any such vacancy continues the surviving or continuing Auditor
or Auditors, if any, may act. The remuneration of any Auditor appointed by the
Directors under this Article may be fixed by the Directors.
114. Every Auditor of the Company shall have a :right of access at all
times to the books and accounts and vouchers of the Company and shall be
entitled to require from the Directors and Officers of the Company such
information and explanation as may be necessary for the performance of the
duties of the auditors.
115. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon request of
the Directors or any general meeting of the Members, make a report on the
accounts of the Company in general meeting during their tenure at office.
NOTICES
116. Notices shall be in writing and may be given by the Company to any
Member either personally or by sending it by post, cable, telex or telecopy to
him or to his address as shown in the register of Members, such notice, if
mailed, to be forwarded airmail if the address be outside the Cayman Islands.
117. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, prepaying and posting a letter
containing the notice, and to have been effected at the expiration of sixty
hours after the letter containing the same is posted as aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service
of the notice shall be deemed to be effected by properly addressing, and
sending such notice through a transmitting organization and to have been
effected on the day the same is sent as aforesaid.
118. A notice may be given by the Company to the joint holders of record
of a share by giving the notice to the joint holder first named on the register
of Members in respect of the share.
119. A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in consequence of
the death or bankruptcy of a Member by sending it through the post as aforesaid
in a pre-paid letter addressed
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to them by name, or by the title of representatives of the deceased, or trustee
of the bankrupt, or by any like description at the address supplied for that
purpose by the persons claiming to be so entitled, or at the option of the
Company by giving the notice in any manner in which the same might have been
given if the death or bankruptcy had not occurred.
120. Notice of every general meeting shall be given in any manner
hereinbefore authorised to:
(a) every person shown as a Member in the register of Members as
of the record date for such meeting except that in the case of joint
holders the notice shall be sufficient if given to the joint holder
first named in the register of Members.
(b) every person upon whom the ownership of a share devolves by
reason of his being a legal personal representative or a trustee in
bankruptcy of a Member of record where the Member of record but for his
death or bankruptcy would be entitled to receive notice of the meeting;
and
No other person shall be entitled to receive notices of general meetings.
WINDING UP
121. If the Company shall be wound up the liquidator may, with the
sanction of a Special Resolution of the Company and any other sanction required
by the Statute, divide amongst the Members in specie or kind the whole or any
part of the assets of the Company (whether they shall consist of property of the
same kind or not) and may for such purpose set such value as he deems fair upon
any property to be divided as aforesaid and may determine how such division
shall be carried out as between the Members or different classes of Members. The
liquidator may with the like sanction, vest the whole or any part of such assets
in trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction, shall think fit, but so that no Member shall
be compelled to accept any shares or other securities whereon there is any
liability.
122. If the Company shall be wound up, and the assets available for
distribution amongst the Members as such shall be insufficient to repay the
whole of the paid-up capital, such assets shall be distributed so that, as
nearly as may be, the losses shall be borne by the Members in proportion to the
capital paid up, or which ought to have been paid up, at the commencement of the
winding up on the shares held by them respectively. And if in a winding up the
assets available for distribution amongst the Members shall be more than
sufficient to repay the whole of the capital paid up at the commencement of the
winding up, the excess shall be distributed amongst the Members in proportion to
the capital paid up at the commencement of the winding up on the shares held by
them respectively. This Article is to be without prejudice to the rights of the
holders of shares issued upon special terms and conditions.
INDEMNITY
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123. The Directors and officers for the time being of the Company and
any trustee for the time being acting in relation to any of the affairs of the
Company and their heirs, executors, administrators and personal representatives
respectively shall be indemnified out of the assets of the Company from and
against all actions, proceedings, costs, charges, losses, damages and expenses
which they or any of them shall or may incur or sustain by reason of any act
done or omitted in or about the execution of their duty in their respective
offices or trusts, except such (if any) as they shall incur or sustain by or
through their own wilful neglect or default respectively and no such Director,
officer or trustee shall be answerable for the acts, receipts, neglects or
defaults of any other Director, officer or trustee or for joining in any receipt
for the sake of conformity or for the solvency or honesty of any banker or other
persons with whom any monies or effects belonging to the Company may be lodged
or deposited for safe custody or for any insufficiency of any security upon
which any monies of the Company may be invested or for any other loss or damage
due to any such cause as aforesaid or which may happen in or about the execution
of his office or trust unless the same shall happen through the wilful neglect
or default of such Director, Officer or trustee.
FINANCIAL YEAR
124. Unless the Directors otherwise prescribe, the financial year of the
Company shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
125. Subject to the Statute, the Company may at any time and from time
to time by Special Resolution alter or amend these Articles in whole or in part.
TRANSFER BY WAY OF CONTINUATION
126. If the Company is exempted as defined in the Statute, it shall,
subject to the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and to
be deregistered in the Cayman Islands.
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DATED this 23rd day of October 1997.
/s/ Shaun Denton
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Shaun Denton, Attorney-at-Law
PO Box 309, Grand Cayman
/s/ Adrian Pope
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Adrian Pope, Attorney-at-Law
PO Box 309, Grand Cayman
/s/ [ILLEGIBLE]
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Witness to the above signatures
I, Anthony Ian Goddard Registrar of Companies in and for the Cayman Islands
HEREBY CERTIFY that this is a true and correct copy of the Articles of
Association of this Company duly incorporated on the 23rd day of October, 1997.
/s/ Anthony Ian Goddard
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Registrar of Companies
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