Exhibit 3.13
ARTICLES OF ASSOCIATION
-----------------------
PRELIMINARY
-----------
1. The Regulations of Table "A" in the First Schedule of the Companies Act.
Cap. 308 shall not apply to the Company, except so far as the same are repeated
or contained in these Articles.
2. In these Articles the words standing in the first column of the table
next hereinafter contained shall bear the meanings set opposite them
respectively in the second column thereof, if not inconsistent with the subject
or context.
WORDS MEANINGS
----- --------
The Company The above-named Company.
The Act The Companies Act Cap. 308 and every other Act
for the time being in force concerning companies
and affecting the Company.
These Articles These Articles of Association as originally formed
or as altered from time to time by Special
Resolution.
The Register The Register of Members to be kept as required by
the provisions within the Act.
The Directors The Directors for the time being of the Company, or
if there be only one Director, then such one
Director.
The Office The registered office for the time being of the
Company.
The Seal The Common Seal of the Company.
Month Calendar Month.
Year Calendar Year.
In Writing Written or produced by any substitute for writing or
partly one or partly the other.
Dividend Dividend and/or bonus.
Paid Paid or credited.
Person Individuals, corporations, government.
Words importing the singular number only shall include the plural number,
and vice versa.
Words importing the masculine gender only shall include the feminine
gender. Subject as aforesaid, any words or expressions defined in the Act, shall
except where the subject or context forbids, bear the same meanings in these
Articles.
3. The Share Capital of the Company is stated in the Memorandum of
Association.
4. The Company is a Private Company within the meaning of the Act and
accordingly:
(1) No invitation shall be issued to the public to subscribe for any
share of debenture of the company.
(2) The number of the members of the company (not including persons who
are in the employment of the Company and persons who having been
formerly in the employment of the company were
while in that employment and have continued after the termination of
that employment to be members of the company) shall be limited to
fifty, provided that, for the purpose of this provision, where
shares in the company are held jointly they shall be treated as
single member.
(3) The right to transfer the shares of the company shall be restricted
in manner hereinafter appearing.
(4) The Company shall not have power to issue share warrants to bearer.
SHARE CAPITAL AND VARIATIONS OF RIGHTS
--------------------------------------
5. Save as the Company may by special resolution otherwise direct, the
shares in the company shall be at the disposal of the directors, and they may
allot, grant options over or otherwise dispose of them to such persons at such
times, and on such terms as they may think proper.
6. (1) Subject to the provisions of these Articles and without
prejudice to any special rights previously conferred on the holders
of any existing shares or class of shares, any shares in the company
may be issued with such preferred, deferred or other special rights
or subject to such restrictions whether in regard to dividend,
voting,
return of capital or otherwise as the company may from time to time
by Extraordinary Resolution determine.
(2) Subject to the provisions of the Act, any preference shares may,
with the sanction of an ordinary resolution, be issued on the terms
that they are, or at the option of the company are liable, to be
redeemed on such manner as the company before the issue of the
shares may by special resolution determine.
(3) The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that
class, be deemed to be varied by the creation or issue of further
shares ranking pari passu therewith.
7. The company may pay a commission to any person in consideration of his
subscribing or agreeing to subscribe whether absolutely or conditionally or
procuring or agreeing to procure subscriptions, whether absolute or conditional,
for any shares in the capital of the company, such commission not to exceed ten
(10) per cent of the price at which the shares are issued or an amount
equivalent thereto.
Any such commission may be paid or satisfied in whole or in part in cash or
in fully paid shares or debentures of the company at par, or partly in one way
and partly in another as may be arranged.
8. If at any time the share capital is divided into different classes of
shares, all or any of the rights attached to any class (unless otherwise
provided by the terms of issue of the shares of that class) shall not be varied
except by agreement between the Company and any person purporting to contract on
behalf of that class, provided such agreement is ratified in writing by the
holders of three-fourths in nominal value of the issued shares of that class, or
is confirmed or sanctioned by Extraordinary Resolution passed at a separate
General Meeting of the holders of the shares of the class. To every such
separate General meeting of the provisions of these Articles relating to General
Meetings shall mutatis mutandis apply, but so that the necessary quorum shall be
two persons holding or representing by proxy 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.
9. The special rights conferred upon the holders of any shares or class of
shares shall not, unless otherwise expressly provided by the conditions of issue
of such shares, be deemed to be varied by the creation or issue of further
shares ranking pari passu therewith.
10. If two or persons are registered as joint holders of any shares, any
one of such persons may give effectual receipts for any dividends or other
moneys payable in respect of such share.
11. Except as required by law, no person shall be recognized by the company
as holding any share upon any trust, and the company shall not be bound by or
required
to recognize, even when having notice thereof, any equitable contingent, future
or partial interest in any share or any right whatsoever in respect of any share
other than an absolute right to the entirety thereof in the registered holder.
12. Every member shall be entitled, without payment, to receive within two
month; after allotment or lodgment of transfer (unless the conditions of issue
provided for a longer interval) one certificate under the Seal for all the
shares registered in his name, specifying the number and denoting numbers of the
shares in respect of which it is issued and the amount paid up thereon. Provided
that in the case of joint holders the Company shall not be bound to issue more
than one certificate to all the joint holders, and delivery of such certificate
to any one of them shall be sufficient delivery of all. Every certificate shall
be signed by one director and countersigned by the secretary or some other
person nominated by the directors for the purpose.
13. If any share certificate shall be defaced, worn out, destroyed or lost,
it may be renewed on such evidence being produced and such indemnity (if any)
being given as the directors shall require, and in case of defacement or wearing
out, on delivery up of the old certificate, and in the case on payment of such
sum, not exceeding US$1.00 (equivalent of EC$2.70) as the directors may from
time to time require.
14. If after a transfer of shares there shall remain a balance of shares
registered in the name of the transferor, and if he shall in writing require, a
balance shall be issued to him without charge.
LIEN
----
15. The company shall have a first and paramount lien upon all shares
(whether fully paid or not) registered in the name of any member, either alone
or jointly with any other person, for his debts, liabilities and engagements,
whether solely or jointly with any other person, to or with the company whether
the period for the payment, fulfillment or discharge thereof shall have actually
arrived or not, and such lien shall extend to all dividends from time to time
declared in respect of such shares. But the directors may at any time declare
any share to be exempt, wholly or partially from the provisions of this Article.
16. The directors may sell the shares subject to any such lien at such time
or times and in such manner as they think fit, but no sale shall be made until
such time as the moneys in respect of which such lien exists or some part
thereof are or is presently payable or the liability or engagement in respect of
which such lien exists is liable to be presently fulfilled or discharged, and
until a demand and notice in writing stating the amount due or specifying the
liability or engagement and demanding payment or fulfillment or discharge
thereof and giving notice of intention to sell in default shall have been served
on such member or the person (if any) entitled by transmission to the shares,
and default in payment, fulfillment or discharge shall have been made by him or
them for fourteen days after such notice.
17. The net proceeds of any such sale shall be applied in or towards cost
of the sale and in or towards satisfaction of the amount due to the company or
of the liability or engagement, as the case may be, and the balance (if any)
shall (subject to a like lien for sums not presently payable as existed on the
shares before the sale) be paid to the member or the person (if any) entitled by
transmission to the shares so sold at the date of the sale, or as he shall
direct.
18. To give effect to any such sale the directors may authorise 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.
CALLS ON SHARES
---------------
19. The directors my, subject to the provisions of these Articles, from
time to time make such calls upon the members in respect of all moneys unpaid on
their shares, whether on account of the nominal value of the shares or by way of
premium, as they think fit, provided that twenty-eight days' notice at least is
given of each call and the member shall be liable to pay the amount of every
call so made upon him to the persons, by the installments (if any) and at the
times and places appointed by the Directors. A call may be revoked or postponed
as the directors may determine.
20. A call shall be deemed to have been made at the time when the
resolution of the directors authorising such call was passed and may be required
to be paid by installments.
21. The joint holders of a share shall be jointly and severally liable to
the payment of all calls and installments in respect thereof.
22. If before or on the day appointed for payment thereof a call or
installment payable in respect of a share is not paid, the person from whom the
same is due shall pay interest on the amount of the call or installment at such
rate not exceeding ten (10) per cent per annum as the directors shall fix from
the day appointed for payment thereof to the time of actual payment, but the
directors may waive payment of such interest wholly or in part.
23. Any sums which by the term of issue of a share is made payable upon
allotment or at any fixed date, whether on account of the amount of the shares
or by way of premium, shall for all purposes of these Articles be deemed to be a
call duly made and payable on the date fixed for payment of interest and
expenses, forfeiture and the like, and all other relevant provisions of these
Articles, shall apply as if such sums were a call duly made and notified as
hereby provided.
24. No member shall be entitled to receive any dividend or to exercise any
privilege as a number until he shall have paid all calls for the time being due
and payable
on every share held by him whether alone or jointly with any other person,
together with interest and expenses (if any).
25. The directors any from time to time make arrangements on the issue of
shares for a difference between the holders of such shares in the amount of
calls to be paid and in the time of payment of such calls.
26. The directors may, if they think fit, receive from any member willing
to advance the same, all or any part of the moneys due and upon his shares
beyond the sums actually called up, thereof, and upon the moneys so paid in
advance or so much thereof as exceeds the amount for the time being called up on
the shares in respect of which such advance has been made, the directors may pay
or allow such interest as may be agreed between them and such member in addition
to the dividend payable upon such part of the share in respect of which such
advance has been made as is actually called up.
TRANSFER OF SHARES
------------------
27. Subject to the restrictions of these Articles shares shall be
transferable, but every transfer must be in writing any usual or common form or
in such other form as the directors shall from time to time approve, and must be
left at the office accompanied by the certificate for the shares to be
transferred and such other evidence (if any) as the directors may require to
prove the title of the intending transferer.
28. The directors may in their absolute discretion and without assigning
any reason therefor decline to register any transfer of shares (whether fully
paid or not) and
they may also decline to register any transfer of shares on which the company
has a lien. If the directors refuse to register a transfer they shall within two
months after the date on which the transfer was lodged with the company send to
the transferee notice of the refusal.
29. The instrument of transfer of a share shall be executed both by the
transferer and the transferee, and the transferer shall be deemed to remain the
holder of the share until the name of the transferee is entered in the register
of members in respect thereof.
30. No share shall in any circumstances be transferred to any bankrupt or
person of unsound mind.
31. The company shall provide a register to be called the Register of
Transfers, which shall be kept by the secretary under the control of the
directors, and in which shall be entered the particulars of every transfer or
transmission of every share.
32. Such fee, as the directors may from time to time determine, may be
charged for registration of a transfer and on registration of every probate,
letter of administration, certificate of death or marriage, power of attorney,
notice in lieu of distringas or other instrument. The directors may decline to
recognise any instrument of transfer unless -
(1) the required transfer fee has been paid;
(2) the instrument of transfer is accompanied by the certificate of the
shares to which it relates and such other evidence as the directors
way reasonably require to show the right of the transferer to make
the transfer; and
(3) the instrument of transfer is in respect of only one class of share.
TRANSMISSION OF SHARES
----------------------
33. In the case of the death of a member, the survivor, where the deceased
was a joint holder, and the executors or administrators of the deceased, where
he was a sole or only surviving holders shall be the only person recognised by
the company as having any title to his shares but nothing herein contained shall
release the estates of a deceased joint holder from any liability in respect of
any shares jointly held by him.
34. Any person becoming entitled to a share in consequence of the death or
bankruptcy of any member may, upon producing such evidence of title as the
directors shall require, be registered himself as holder of the share, or
subject to the provisions as to transfers herein contained, transfer the same to
some other person.
35. A person entitled to a share by transmission shall be entitled to
receive, and may give a discharge for, any dividends or other moneys payable in
respect of the share, but he shall not be entitled in respect of it to receive
notices of, or to attend or vote at meetings of the company, or, save as
aforesaid, to exercise any of the rights or
privileges of a member, unless and until he shall become a member in respect of
the share.
FORFEITURE OF SHARES
--------------------
36. If a member fails to pay the whole or any part of any call or
installment of a call on the day appointed for payment thereof, the directors
way at any time thereafter, during such time as any part of the call or
installment remains unpaid, serve a notice on him or on the person entitled to
the share by transmission requiring payment of such call or installment or so
much of the call or installment as is unpaid, together with interest at such
rate, not exceeding ten (10) per cent per annum, as the directors shall
determine and any expenses that may have accrued by reason of such non-payment.
37. The notice shall name a further day (not earlier than the expiration of
fourteen days from the date of service 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
the call was made will be liable to be forfeited.
38. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which the notice has been given may at any time
thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the directors to the effect and such forfeiture
shall include all dividends in respect of the
shares not actually paid before the forfeiture, notwithstanding that they
shall have been declared.
39. When any share has been forfeited in accordance with these Articles,
notice of the forfeiture shall forthwith be given to the holder of the share or
to the person entitled to the share by transmission, as the case may be, and an
entry of such notice having been given, and of the forfeiture with the date
thereof, shall forthwith be made in the register of members relating to the
share, but the provisions of this Article are directory only, and no forfeiture
shall be in any manner invalidated by any omission or neglect to give such
notice or to make such entry as aforesaid.
40. A forfeited share may be sold or otherwise disposed of on such terms to
such person 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.
41. 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 moneys and to satisfy all (if any) the claims and demands
which the company might have enforced in respect of the shares which, at the
date of forfeiture, were payable by him to the company or which might have been
enforced in respect of the shares, without any deduction or allowance for the
value of the shares at the time of forfeiture, but his liability shall cease if
and when the company shall have received
payment in full of all such moneys and shall have satisfied all the claims
and demands which it might have enforced in respect of the shares.
42. The forfeiture of a share shall involve the extinction at the time of
forfeiture of all interest in and all claims and demands against the company in
respect of the share, and all other rights and liabilities incidental to the
share as between the shareholder whose share is forfeited and the company,
except only such of those rights and liabilities as are by these Articles
expressly saved, or as are by the Act given or imposed in the case of past
members.
43. A declaration in writing that the declarant is a director or the
secretary of the company, and that a share in the company has been duly
forfeited on a date stated in the declaration, shall be conclusive evidence of
the facts therein stated as against all persons claiming to be entitled to the
share. The company may receive the consideration (if any) given for the share on
any sale or disposition thereof and may execute a transfer of the share in
favour of the person to whom the share is sold or disposed of and he shall
thereupon be registered as the holder of the share, and shall not be bound to
see 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.
ALTERATIONS OF CAPITAL
----------------------
44. The company may by Ordinary Resolution:
(1) increase its share capital by such amount to be divided into shares
of such ordinary, preferred, deferred or other special rights (if
any) as the resolution may prescribe;
(2) consolidate and divide all or any of its share capital into shares
of larger amount than its existing shares;
(3) 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;
The company may by Special Resolution:
(1) subdivide its existing shares, or any of them, into shares of
smaller denomination than is fixed by the Memorandum of Association,
provided, however, that in the subdivision the proportion between
the amount paid and the amount (if any) unpaid on each reduced share
shall be the same as it was in the case of the share from which the
reduced share is derived;
(2) reduce its share capital and any share premium account in any manner
and with and subject to any incident authorised and consent required
by law.
45. When any shares have been converted into stock the holders of stock may
transfer the same or any part thereof in such manner as the company in General
Meeting shall direct, but in default of such direction in the same manner and
subject to the same
regulations as and subject to which the shares from which the stock arose might
previously to conversion have been transferred, or as near to as circumstances
will admit. But the directors may from time to time fix the minimum amount of
stock transferable and restrict or forbid the transfer of fractions of that
minimum with power to waive compliance with such rules upon such occasions as
they think fit, provided that the minimum shall not exceed the nominal of the
shares from which the stock arose.
46. The holders of stock shall, according to the amount of stock held by
them, have the same rights, privileges and advantages as regards dividends,
distributions, voting and other matters as if they held the shares from which
the stock arose but no such privilege or advantage (except participation in
dividends and profits and in the assets on winding up) shall be conferred by an
amount of stock that would not, if existing in shares, have been conferred such
privilege or advantage.
47. All such provisions of these Articles as are applicable to paid-up
shares shall apply to stock and the word "share " and "shareholder " shall
include "stock" and "stockholder".
GENERAL MEETINGS
----------------
48. The company shall each year hold a General Meeting within four months
after its Memorandum of Association is registered.
49. (1) The directors may convene an Extraordinary General Meeting
whenever they think fit, and Extraordinary General Meetings shall
also be convened on such requisition as provided by Article 92 of
the Act.
(2) If at any time there are not within Montserrat sufficient directors
capable of acting to form a quorum, any director of any two members
of the company may convene an Extraordinary General Meeting in the
same manner as nearly as possible as that in which meetings may be
convened by the directors.
50. Twenty-one clear days' notice at the least specifying the place, the
day and the hour of the meeting, and in the case of special business the general
nature of such business, shall be given in manner hereinafter mentioned to such
persons as are under the provisions of these Articles entitled to receive the
notices of General Meetings from the company, but with the consent of all
persons for the time being entitled as aforesaid a meeting may be convened upon
shorter notice, and in such manner as such persons may approve. The accidental
omission to give such notice to, or the non-receipt of such notice by, any such
person shall not invalidate any resolution passed or proceeding had at any such
meeting.
PROCEEDING AT GENERAL MEETING
-----------------------------
51. All business shall be deemed special that is transacted at an
Extraordinary General Meeting, and all that is transacted at an Annual General
Meeting shall also be deemed special, with the exception of sanctioning and
declaring a dividend, the
consideration of the accounts and balance sheets and the reports of the
directors and Auditors, and other documents accompanying or annexed to the
balance sheets and the appointment and the fixing of the remuneration of
directors and of Auditors.
52. No business shall be transacted at any General Meeting unless a quorum
is present when the meeting proceeds to business. For all purposes the quorum
shall be two persons present being members or proxies for members.
53. If within half an hour from the time appointed for the holding of a
General Meeting a quorum is not present, the meeting, if convened on the
requisition of members shall be dissolved. In any other case it shall stand
adjourned to the same day in the next week at the same time and place and if at
such adjourned meeting a quorum is not present within half an hour from the time
appointed for holding the meeting, one member present in person or by proxy
shall be a quorum.
54. The Chairman (if any) of the directors shall preside at every General
Meeting, but if there be no such Chairman, or if at any meeting he shall not be
present within fifteen minutes after the time appointed for holding the same, or
he shall not be willing to act as Chairman, the members present shall choose
some director, or if no director be present, or if all the directors present
decline to take the chair, they shall choose some member present to be Chairman
of the meeting.
55. The Chairman of a meeting may, with the consent of any meeting at which
a quorum is present, and shall if so directed by the meeting, adjourn any
meeting from
time to time and from place to place as the meeting shall determine. Whenever a
meeting is adjourned for twenty-one days or more, notice of the adjourned
meeting shall be given in the same manner as in the case of the original
meeting. Save as aforesaid, no member shall be entitled to any notice of an
adjournment or of the business to be transacted at any adjourned meeting other
than the business which might have been transacted at the meeting from which the
adjournment took place.
56. At all General Meetings a resolution put to the vote of the meeting
shall be decided on a show of hands, unless before or upon the declaration of
the result of the show of hands a poll be demanded in writing by the Chairman or
by at least two persons for the time being entitled to vote at the meeting, or
by a person or persons representing not less than one-tenth of the total voting
rights of all the members having the right to vote at the meeting, or by a
member, or members holding shares conferring a right to vote at the meeting,
being shares on which an aggregate sum has been paid up equal to not less than
one-tenth of the total sum paid up an all shares conferring that right, and
unless a poll be so demanded a declaration by the Chairman of the meeting that a
resolution has on a show of hands been carried, or carried unanimously, or by a
particular majority, or lost, or not carried, by a particular majority, shall be
conclusive, and an entry to that effect in the minute book of the company shall
be conclusive evidence thereof, without proof of the number or proportion of the
votes recorded in favour of or against such resolution. The demand for a poll
may be withdrawn.
57. If a poll be demanded in manner aforesaid, it shall be taken at such
time within fourteen days and at such place and such manner, as the Chairman
shall direct, and the result of the poll shall be deemed to be the resolution of
the meeting at which the poll was demanded.
58. No poll shall be demanded on the election of a Chairman of a meeting,
or on any question of adjournment.
59. In the case of an equality of votes, either on a show of hands or on a
poll, the Chairman of the meeting shall be entitled to a further or casting
vote.
60. The demand of a poll shall not prevent the continuance of a meeting for
the transaction of any business, other than the question on which a poll has
been demanded.
61. A resolution in writing signed by all the members for the time being
entitled to receive notice of and to attend and vote at General Meeting (or
being corporations, by their duly appointed 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.
VOTES OF MEMBERS
----------------
62. Subject and without prejudice to any special privileges or restrictions
as to voting for the time being attaching to any class of shares for the time
being forming part of the capital of the company, every member present in person
or voting by proxy shall
have one vote on a show of hands and in case of a poll shall have one vote for
each share of which he is the holder.
63. If any member be a lunatic, idiot or non compos mentis, he may vote by
his committee, receiver, curator bonis or other legal curator, and such last
mentioned persons may give their votes either personally or by proxy.
64. If two or more persons are jointly entitled to a share, then in voting
upon any question 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
registered holders of the share, and for this purpose seniority shall be
determined by the order in which the names stand in the register of members.
65. Save as herein expressly provided, no person other than a member duly
registered, and who shall have paid everything for the time being due from him
and payable to the company in respect of his shares, shall be entitled to be
present or to vote on any question either personally or by proxy, or to be
reckoned in a quorum at any General Meeting.
66. Votes may be given either personally or by proxy. A proxy need not be a
member.
67. The appointing of a proxy shall be by an instrument in common form or
in any form approved by the directors and shall be in writing under the hand of
the appointer or his attorney duly authorised in writing; if such appointment is
by a corporation under
the hand of some officer duly authorised in that behalf but any member of the
company (including a corporation) whose address as shown by entry in the
register of members is outside Montserrat may appoint a proxy by cable. The
instrument or cable appointing a proxy may contain a direction to the proxy to
vote for or against a particular resolution or resolutions but unless such a
direction be given the proxy may vote as he thinks fit, and an instrument or
cable appointing a proxy shall be deemed to include the power to demand or to
join or concur in demanding a poll on behalf of the appointer.
68. The instrument appointing a proxy, together with the power of attorney
(if any) under which it is signed or a notarially certified copy thereof, or a
cable appointing a proxy pursuant to the last preceding Articles shall be
respectively deposited or received at the Office at least forty-eight hours
before the time appointed for holding the meeting, adjourned meeting or the
taking of a poll at which the person named in such instrument proposed to vote;
otherwise the person so named shall not be entitled to vote in respect thereof.
69. Any corporation which is a member of the company may by notification in
writing under the hand of some officer duly authorised in that behalf, 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 some powers on behalf of the corporation which
he represents as that corporation and could exercise if it were an individual
member of the company.
DIRECTORS
---------
70. The number of directors shall not be less than one or more than ten.
71. The first directors and the first Chairman of the directors shall be
appointed by the subscribers to the Memorandum of Association.
72. The company in General Meeting may -
(1) appoint any person a director, so, however, that the prescribed
maximum be not exceeded and determine the period for which the
person so appointed is to hold office;
(2) remove any director.
73. A director shall not be required to hold a share qualification but
shall nevertheless be entitled to receive notice of and to attend and speak at
any General Meeting or at any separate meeting of the holders of any class of
shares in the company.
74. The directors shall have power from time to time to any person to be a
director, either to fill a casual vacancy in their number or as an addition to
the existing directors, provided that the total number of directors shall not
exceed the prescribed maximum. A Director so appointed shall hold office only
until the next Annual General Meeting, but shall be eligible for reappointment.
75. The remuneration of the directors shall from time to time be determined
by the company in General Meeting and such remuneration shall be divided between
them in such proportions as may be agreed between them; but, in default of such
agreement, the same shall, if they have all been directors throughout the year
to which the remuneration relates, be divided between them equally and if they
have not, the same shall be divided between them ratably in proportion to the
parts of such year during which they have respectively been directors. The
directors shall also be entitled, in their absolute discretion and without the
sanction of a General Meeting to repay any director any traveling and hotel
expenses reasonably incurred by him in or about the performance of his duties as
director, including any such expenses incurred in connection with his attendance
at Board meetings. If by arrangement with the other directors any director shall
perform or render any special duties or services outside his ordinary duties as
a director, the directors may pay his special remuneration, in addition to his
ordinary remuneration, and such special remuneration may be by way of salary,
commission, participation in profits or otherwise as may be arranged.
76. Subject as herein otherwise provided or to the terms of any lawful
agreement, the office of a director shall be vacated if -
(1) a receiving order is made against him or he makes any arrangement or
composition with his creditors;
(2) he is found lunatic or becomes of unsound mind;
(3) he shall be requested to vacate office by all the other directors,
and they pass a resolution that he has been so requested and by
reason thereof has vacated his office;
(4) by notice in writing to the company he resigns his office;
(5) he is removed from office under Article 72.
ALTERNATIVE DIRECTORS
---------------------
77. Each director shall have power by an instrument in writing to nominate
any person to act as alternative director in his place and at his discretion to
remove such alternate director; and on such appointment being made the alternate
director shall be subject in all respects to the terms and conditions affecting
the other directors. An alternate director so appointed shall be entitled to
attend and vote as a director at any meetings of Directors at which the director
appointing him is not present and generally to exercise all the powers, rights,
duties and authorities of the director appointing him. Should an alternate
director also be a director of the company, all rights vested in him as an
alternate director (including the rights of voting at meetings) shall be in
addition to and not in substitution for his rights as a director. Any instrument
appointing an alternate director shall be delivered to and retained by the
company. If the director making any such appointment as aforesaid shall cease to
be a director, the person appointed by him shall cease to have any power or
authority to act as an alternate director.
DIRECTOR'S CONTACT
------------------
78. (1) A director may contract with and be interested in any way,
whether directly or indirectly, in any actual or proposed contract
or arrangement with the company, either as vendor, purchaser or
otherwise, and shall not be liable to account for any profit made
by him by reason of such contract or arrangement, provided that the
nature of the interest of the director in such contract or
arrangement be declared at the meeting of directors at which the
question is first taken into consideration, if his interest then
exists, or in any other case at the meeting next of the directors
held after he became interested, and it shall be the duty of the
director so to declare his interest. No director shall vote as a
director in respect of any contract or arrangement in which he
shall be interested, and if he does so his vote shall not be
counted; he way be required by the majority of the other directors
to withdraw during the discussion of such contracts and
arrangements, but for this purpose he shall be counted in the
quorum present at the meeting, and these prohibitions shall not
apply to
(a) any arrangement for giving a director any security for
advances or by way of indemnity or to any allotment or to
any contract or arrangement for the underwriting or
subscription by a director of shares or debentures of the
company; or
(b) any contract or dealing in which the director is interested
by reason only of his being a director or other officer,
employee or nominee of any corporation which, being a member
of the company or holding shares in a corporation which is a
member of the company, is interested in such contract or
dealing, whether directly or indirectly, and this exception
shall not cease to have effect merely by reason of the fact
that the director is also a shareholder or creditor of any
such corporation or any corporation in which it is
interested.
Provided that these provisions may at any time be suspended or relaxed to any
extent by an Extraordinary Resolution of the company.
(2) A director may hold office as a director or manager or be otherwise
interested in any other corporation in which the company is in any
way interested, and shall not (unless it is otherwise agreed) be
liable to account to this company for any remuneration or other
benefits receivable by him from such other corporation.
(3) A director may hold any other office or place, of profit under the
company (except that of Auditor) in conjunction with his office of
director, and on such terms of remuneration and otherwise as the
directors shall arrange.
(4) A director may act by himself or his firm in a professional capacity
for the company (except as Auditor to the company), and he or his
firm shall be entitled to remuneration for his professional services
as if he were not a director.
(5) For the purpose of this Article a general notice given to the
directors by a director at any meeting of the directors to the
effect that he is a member of a specified corporation or firm and is
to be regarded as interest in any contract which way after the date
of the notice be made with that corporation or firm shall be demand
to be a sufficient declaration of interest in relation to any
contract so made.
POWERS AND DUTIES OF DIRECTORS
------------------------------
79. The business of the company shall be managed by the directors, who may
pay all such expenses preliminary and incidental to the promotion, formation,
establishment and registration of the company as they think fit, and may
exercise all powers of the company and do so on behalf of the company all such
acts as may be exercised and done by the company, and as are not by the Act or
by the company required to be done in General Meeting. In so acting the
directors shall in all cases conform to the
provisions of the Act, to these Articles, and such regulations as may from time
to time be prescribed by the company in General Meeting, but no regulation made
by the company in General Meeting shall operate retrospectively to invalidate
any previous act of the directors.
80. The directors may from time to time provide for management of the
affairs of the company in Montserrat or elsewhere in such manner as they shall
think fit, and the provisions contained in these Articles shall be without
prejudice to the general powers conferred by these Articles.
81. The directors may from time to time and at any time establish and
delegate any of their powers to local boards or committees or employ agencies
for managing any of the affairs of the company in Montserrat or elsewhere, and
may, by resolution appoint any person to be members of such boards or committees
or to be managers or agents, and may fix their remuneration. Any such boards or
committees shall in the exercise of the powers so delegated conform to any rules
and regulations that may be imposed on them by the directors, who may revoke,
annul or vary any such appointment, rules or regulations.
82. The directors may exercise all the powers of the company to borrow
money, and to mortgage or charge its undertaking, property and uncalled capital,
or any part thereof, and to issue debentures, debenture stock and other
securities (whether at par
or at a discount or premium) as security for any debt, liability or obligation
of the company or of any third party.
83. The company may, upon the issue of any bonds, debentures, debenture
stock or other securities, confer on the holders thereof or on any trustees or
other persons acting on their behalf the right to participate in the management
of the company by giving them the right of attending and voting at General
Meetings, by empowering them to appoint one or more persons to be directors of
the company, or by means that may be agreed between the company and the holders
thereof.
84. The continuing directors may act at any time notwithstanding any
vacancy in their body; provided always that in case the directors shall at any
time be reduced in number to less than the minimum number prescribed by or in
accordance with these Articles, it shall be lawful for the continuing directors
or director to act for the purpose of filling up vacancies on the Board, or of
summoning a General Meeting of the company, but not for any other purpose.
MANAGING DIRECTORS
------------------
85. The directors may from time to time appoint any one or more of their
body to be Managing Directors, for such period and upon such terms as they think
fit, and may vest in such Managing Director or Managing Directors such of the
powers hereby vested in the directors generally as they may think fit, and such
powers may be made exercisable
for such period or periods, and upon such conditions and subject to such
restriction and generally upon such terms as to remuneration and otherwise as
they may determine. The remuneration of a Managing Director may be made payable
by way of salary or commission or participation in profits, or by any or all of
these modes or otherwise as may be thought expedient, and it may be made a term
of his appointment that he shall receive a pension, gratuity or other benefit on
his retirement.
86. A Managing Director shall, subject to the provisions of any contract
between him and the company be subject to the same provisions as to resignation
and removal as the other directors of the company, and if he ceases to be a
director he shall automatically and immediately cease to be a Managing Director.
PROCEEDINGS OF DIRECTORS AND COMMITTEES
---------------------------------------
87. The directors may meet together with the dispatch of business, adjourn
and otherwise regulate their meetings as they think fit, but until otherwise
determined by an Extraordinary Resolution of the company, two shall be a quorum
provided that if only two directors are present one of them shall be a Managing
Director (if a Managing Director has been appointed pursuant to Article 85 of
these Articles). Questions arising at any meeting, shall be decided by a
majority of votes.
88. All meetings of the Board of Directors and of any committee of the
Board shall be held in Montserrat or at such other place as the directors may
appoint.
89. A director may, and on the request of a director, the Secretary shall
at any time, summon a meeting of the directors.
90. The directors may elect a Chairman of their meetings and determine the
period for which he is to hold office. The Chairman or the person for the time
being appointed to act as alternative director in his place shall preside at all
meetings of the directors, but if at any meeting neither the Chairman nor the
person for the time being acting as his alternate director is present within
fifteen minutes from the time appointed for holding the same, the directors
present may choose one of their number to be Chairman of the meeting.
91. A committee may elect a Chairman of its meeting. 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 members present may choose
one of their numbers to be Chairman of the meeting.
92. A committee may meet and adjourn as its members think proper. Questions
arising at any meeting shall be determined by a majority of votes of the members
present, and in case of an equality of votes the Chairman of the committee shall
have a second or casting vote.
93. All acts done in good faith by any meeting of directors or of a
committee of directors, or by any local board or committee, or by any person
acting as a director, shall, notwithstanding it be afterwards discovered that
there was some defect in the
appointment of any such director or person acting as aforesaid, or that they or
any of them were disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a director.
94. The directors shall cause proper minutes to be made of all General
Meetings of the company and also of all appointments of officers, and of the
proceedings of all meetings of directors and committees, and of the attendance
thereat, and all business transacted at such meetings, and any such minutes of
any meeting, if purporting to be signed by the Chairman of such meeting, or by
the Chairman of a subsequent meeting, shall be conclusive evidence without any
further proof of the facts therein stated.
95. A resolution in writing signed by all directors shall be as valid and
effective for all purposes as a resolution passed at a meeting of the directors
duly convened, held and constituted.
SEAL
----
96. The Seal shall not be affixed to any instrument except by the authority
of a resolution of the Board of Directors or of a committee of the directors
authorised by the Board in that behalf, and in the presence of two directors or
of one director and the secretary or such other person as the director may
appoint for the purpose and such directors or director and secretary or other
person as aforesaid shall sign every instrument to which the Seal shall be
affixed in their presence, and in favour of any purchaser or
person dealing with the company in good faith such signature shall be conclusive
evidence of the fact that the Seal has been properly affixed.
97. The secretary shall be appointed by the directors for such time at such
remuneration and upon such conditions as they may think fit, and any secretary
so appointed may be removed by them. The directors may from time to time by
resolution appoint an assistant or deputy secretary to exercise the functions of
the secretary.
PENSIONS AND ALLOWANCES
-----------------------
98. A directors may grant retirement pensions or annuities or allowances,
including allowances on death, to any person or to the widow or dependents of
any person in respect of services rendered by him to the company as Managing
Director or in any other executive office or employment under the company or in
directly as an executive officer or employee of any subsidiary company of the
company or its holding company (if any), notwithstanding that he may be or may
have been a director of the company and may make payments towards insurance or
trusts for such purposes in respect of such pensions, annuities and allowances
in the terms of engagement of any person.
DIVIDENDS AND RESERVE FUND
--------------------------
99. Subject to any preferential or other special rights for the time being
attached to any shares, the profits of the company which it shall from time to
time determine to distribute by way of dividend shall be applied in payment of
dividends upon
the shares of the company in proportion to the amounts paid up or credited as
paid up thereon respectively, otherwise than in advance of calls.
100. The directors may, with the sanction of a General Meeting from time to
time declare dividends, but no such dividends shall be payable except out of the
profits of the Company. The directors may, if they think fit, from time to time
declare any payment to the members without the sanction of a General Meeting
such interim dividends as appear to them to be justified by the position of the
company, and may also from time to time, if in their opinion such payment is so
justified, pay any preferential dividends which by the terms of issue of any
shares are made payable on fixed dates. No higher dividend shall be paid than is
recommended by the directors and the declaration of the directors as to the
amount of the net profits shall be conclusive.
101. The directors may deduct from any dividend payable to any member all
sums of money (if any) presently payable by him to the company on account of
calls or otherwise in relation to the shares of the company.
102. The directors may, before recommending any dividend, set aside out of
the profits of the company such sums as they think proper to a reserve fund or
reserve account, which shall at the discretion of the directors be applicable
for meeting contingencies, or for repairing or maintaining any works connected
with the business of the company, or shall with the sanction of the company in
General Meeting, be, as to the
whole or in part, applicable for equalising dividends, or for distribution by
way of special dividend or bonus, or may be applied for such other purposes for
which the profits of the company may lawfully be applied as the directors may
think expedient in the interest of the company, and pending such application the
directors may employ the sums from time to time so set apart as aforesaid in the
business of the company or invest the same in such securities other than the
shares of the company as they may select. The directors may also from time to
time carry forward such sums as they may deem expedient in the interest of the
company.
103. Every dividend warrant may unless otherwise directed, be sent by post
to the last registered address of the member entitled thereto, and the receipt
of the person whose name at the date of the declaration of the dividend appears
an the register of members as the owner of any share, or where the dividend is
expressed to be payable to members registered on some other date the receipt of
the person whose name appears at the other date in the register of members as
the owner of any share or in the case of joint holders of any one of such joint
holders, shall be a good discharge to the company for all payments made in
respect of such share. No unpaid dividend or interest shall bear interest as
against the company.
104. Subject to any necessary sanction or authority being obtained by the
company in General Meeting may by Extraordinary Resolution direct the
capitalization of any undivided profits of the company not required for payment
of any fixed preferential
dividend or debenture interest whether standing to the credit of a reserve fund
or not, including premium received on the issue of shares or debentures of the
company and whether in the nature of income or of ascertained accretions of
capital, and the directors shall give effect to such resolution by applying such
profits to be so capitalised in paying up either -
(1) partly paid shares held by the shareholders who would be entitled to
such profits if the same were distributed by way of dividend; or
(2) unissued shares or debentures of the company to be thereupon issued
to such shareholders as aforesaid or (so far as such issues shall be
impracticable in consequence of the fractions involved) to be sold
for the benefit of the shareholders entitled thereto or dealt with
by the issue of fractional certificates or otherwise settled at the
discretion of the directors as they think expedient, or otherwise by
dealing with sums as directed by resolution.
The directors may appoint any person to contract with the company on behalf of
the shareholders entitled to the capitalized profits, for the application
thereof in the manner aforesaid and any contract so made shall be binding on all
such shareholders.
ACCOUNTS
--------
105. The directors shall cause such accounts to be kept -
(1) of the assets and liabilities of the company;
[(2) of all sums of money received and expended by the company, and the
matters in respect of which such receipts and expenditures take
place, as are necessary to give a true and fair view of the
company's affairs and to explain its transactions. The books of
account shall be kept at the office, or at such other place as the
directors shall think fit, and shall always be open to the
inspection of the directors.
106. The directors shall from time to time determine whether in any
particular case or class of cases, or generally 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, and
no member (not being a director) shall have any right of inspecting any account
or book or document of the company except as conferred by the Statutes or
authorised by the directors or by a resolution of the company in General
Meeting.
107. Within eighteen months of incorporation and subsequently once at least
in every year, the directors shall lay before the company in General Meeting a
Profit and Loss account for the period since the preceding account, or, in the
case of the first account since the incorporation of the company, made up to a
date not more than nine months before such meeting. A Balance Sheet shall also
be made out in every year as at the date to which the profit and loss account is
made up and shall be laid before the
company in General Meeting. Copies of all such documents and any other documents
required by law to be annexed thereto shall, subject to the provisions of the
Statutes, not less than seven days before the date of the meeting before which
they are to be laid, be sent to all members and debenture-holders of the company
subject to the provisions of the Statutes.
AUDIT
-----
108. Once at least in every year the accounts of the company shall be
examined and the correctness of the profit and loss account and the balance
sheet ascertained by one or more Auditor or Auditors, and the provisions of the
Statutes shall be observed.
NOTICES
-------
109. A notice or any other document may be served by the company upon any
member either personally or by sending it through the post in a prepaid letter
addressed to such member at his registered address in Montserrat as appearing in
the register of members. If a member's address as appearing in the register of
members is not within Montserrat any notice or other document shall be served
upon such member by sending it in a prepaid airmail letter to his registered
address.
110. All notices directed to be given to the members shall, with respect to
any share to which persons are jointly entitled, be given to whichever of such
persons is named first in the register of members, and any notice so given shall
be sufficient to the holders of such share.
111. A notice may be given by the company to the persons entitled to any
share in consequence of the death or bankruptcy of a member by sending it
through the post in a prepaid letter addressed to them by name, or by the title
of representatives or trustees of such deceased or bankrupt member, at the
address (if any in Montserrat supplied) by giving the notice in the manner in
which the same would have been given if the death or bankruptcy had not
occurred.
112. Any notice of other document, if served or sent by post or airmail
post, shall be deemed to have been served or delivered seven days after the time
when the letter containing the same is put into the post and in proving such
service or sending it shall be sufficient to prove that the letter containing
the notice or document was properly addressed and put into the post office as a
prepaid letter or prepaid airmail letter as the case may be.
WINDING UP
----------
113. If the company shall be wound up the liquidator may, with the sanction
of an extraordinary resolution of the company and any other sanction required by
the Act, 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
wherein there is any liability.
INDEMNITY
---------
114. Every Director, Auditor or other officer for the time being of the
company shall be indemnified out of the assets of the company against all losses
or liabilities (including any such liability as is mentioned in the Act) which
he may sustain or incur in or about the execution of the duties of his office or
otherwise in relation thereto, and no director, auditor or other officer shall
be liable for any loss, damage or misfortune which may happen to or be incurred
by the company in the execution of the duties of his office or in relation
thereto, and against any liability incurred by him in defending any proceedings,
whether civil or criminal, arising in connection with the affairs of the company
and which judgment is given in his favour or in which he is acquitted.
IN WITNESS WHEREOF, WE, the several persons whose names and addresses are
subscribed hereto being desirous of being formed into a company, in pursuance of
these articles of association, in having heretofore subscribed to a memorandum
of association, and agreed to take the number of shares in the capital of the
company set opposite our respective names, do hereby adopt the aforesaid
articles of association.