NUMBER: 3805 EXHIBIT 1.1
TERRITORY OF THE BRITISH VIRGIN ISLANDS
The International Business Companies Act
(Cap. 291)
AMENDED
MEMORANDUM
and
ARTICLES OF ASSOCIATION
of
NAM TAI ELECTRONICS, INC.
Incorporated the 12th day of August, 1987
Amended the 22nd day of December, 1998
Amended the 26th day of June, 2003
McNAMARA CORPORATE SERVICES LIMITED
Registered Agents
2nd Floor
116 Main Street
P.O. Box 3342
Road Town, Tortola
British Virgin Islands
[SEAL OF REGISTRAR OF INTERNATIONAL BUSINESS COMPANIES]
TERRITORY OF THE BRITISH VIRGIN ISLANDS
INTERNATIONAL BUSINESS COMPANIES ACT, 1984
AMENDED
MEMORANDUM OF ASSOCIATION
OF
NAM TAI ELECTRONICS, INC.
1. The name of the Company is Nam Tai Electronics, Inc.
2. The Registered Office of the Company is McNamara Chambers, P.O. Box
3342, Road Town, Tortola, British Virgin Islands or at such other place
within the British Virgin Islands as the Directors may from time to
time determine.
3. The Registered Agent of the Company in the British Virgin Islands is
McNamara Corporate Services Limited, whose address is P.O. Box 3342,
Road Town, Tortola, British Virgin Islands.
4. The object or purpose for which the Company is established is to engage
in any act or activity that is not prohibited under any law for the
time being in force in the British Virgin Islands.
5. Without prejudice to the generality of clause 4 hereof and subject
thereof, the Company has power to do any and all acts to carry on any
business or businesses whatsoever and to engage in any activities which
may conveniently be carried on with or be conducive to the attainment
of the Company's objects or purposes, including the power to enter into
any contract or undertaking whether directly or indirectly for the
benefit or profit of the Company and to settle the Company's assets or
property or any part thereof in trust or transfer the same to any other
Company whether for the protection of its assets or not, and with
respect to the transfer, the Directors may provide that the Company,
its creditors, its members or any person having a direct or indirect
interest in the Company or any of them may be the beneficiaries,
creditors, members, certificate holders, partners or holders of any
other similar interest.
6. The Company has no power to -
(i) carry on business with persons resident in the British Virgin
Islands except as provided by the Act,
[SEAL OF REGISTRAR OF INTERNATIONAL BUSINESS COMPANIES]
(ii) own an interest in real property situate in the British Virgin
islands, or other than a lease of property for use as an
office from which to communicate with members or where books
and records of the Company are prepared or maintained,
(iii) accept banking deposits,
(iv) accept contracts of insurance.
7. Shares in the Company shall be issued in the currency of the United
States dollar.
8. The Company shall have an authorized capital of US$2,000,000.00
divided into 200,000,000 shares with a par value of US$0.01 per share.
9. The Company shall have one class of one series comprising ordinary
common shares of US$0.01 par value.
10. In as much as more than one class or more than one series of shares are
authorized to be issued, the Directors shall have the authority and the
power to fix by a resolution of directors the designations, powers,
preferences, rights, qualifications, imitations and restrictions if any
appertenant to that class or series of shares.
11. The number of shares into which the share capital is divided may be
issued as registered nominative shares or as shares issued to bearer.
12. Registered nominative shares may be exchanged and converted into shares
issued to bearer and shares issued to bearer may be exchanged and
converted into registered nominative shares.
13. Any notice or other information required by the Act to be given to the
holder of shares issued to bearer shall be given by publishing the same
in a newspaper of general circulation in the British Virgin Islands or
in such other newspaper if any as the Company may from time to time by
resolution of directors determine.
14. The Memorandum and Articles of Association of the Company may be
amended by a resolution of members or a resolution of directors.
[SEAL OF REGISTRAR OF INTERNATIONAL BUSINESS COMPANIES]
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We, Tortola Corporation Company Limited of P.O. Box 662, Citco Building,
Wickhams Cay, Road Town, Tortola for the purpose of incorporating an
International Business Company under the laws of the British Virgin Islands
hereby subscribe our name to this Memorandum of Association this 12th day of
August, 1987 in the presence of:
Witness (Sgd.) J. Caminada
Tortola Corporation Company Limited
Daphne Wattley
Road Town, Tortola
British Virgin Islands
Secretary
(Sgd.) D. Wattley
[SEAL OF REGISTRAR OF INTERNATIONAL BUSINESS COMPANIES]
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT 1984
AMENDED
ARTICLES OF ASSOCIATION
OF
NAM TAI ELECTRONICS, INC.
1. The following Regulations constitute the Regulations of the Company. In
these Articles words and expressions defined in the Intentional
Business Companies Act ("the Act") shall have the same meaning and,
unless otherwise required by the context, the singular shall include
the plural and vice-versa, the masculine shall include the feminine and
neuter and references to persons shall include corporations and all
legal entities capable of having a legal existence.
SHARES
2. Subject to the provisions of these Articles the unissued shares of the
Company (whether forming part of the original or any increased
authorized capital) shall be at the disposal of the Directors who may
offer, allot, grant options over or otherwise dispose of them to such
persons at such times and for such consideration and upon such terms
and conditions as the directors may determine.
3. No shares hall be issued except as fully paid up.
4. The name and address for every person being the holder of registered
nominative shares, their class or series and the date when they became
or ceased to become a member shall be entered as a member in the share
register.
5. Every person whose name is entered as a member in the share register
being the holder of registered nominative shares, shall, without
payment, be entitled to a certificate specifying the share or shares
held and the par value thereof, provided that in respect of a
registered nominative share, or shares, held jointly be several persons
the Company shall not be bound to issue more than one certificate, and
delivery of a certificate for a share to one of several joint holders
shall be sufficient delivery to all.
6. In the case of shares issued to bearer, the share register shall
contain the total number of each class and series of shares so issued
and with respect to each certificate therefor, the identifying number,
the number of each class or series of shares issued to bearer specified
therein and the date of issue of the certificate.
7. Every person to whom shares to bearer must hold a certificate
specifying the share or shares and the par value thereof.
8. Registered nominative shares may pursuant to a resolution of directors
be exchanged and converted into shares issued to bearer.
9. Shares issued to bearer may pursuant to a resolution of directors and
on the giving of such indemnity as the Company be resolution of
directors may reasonably require be exchanged and converted into
registered nominative shares.
10. The bearer of a certificate representing shares issued to bearer shall
for all purposes be deemed to be the owner of the shares comprised in
such certificate.
11. If a certificate is worn out or lost it may be renewed on production of
the worn out certificate, or on satisfactory proof of its loss together
with such indemnity as the directors may reasonably require. Any member
receiving a share certificate shall indemnify and hold the Company and
its officers harmless from any loss or liability which it or they may
incur by reason of wrongful or fraudulent use or representation may by
any person by virtue of the possession such certificate.
SHARE CAPITAL AND VARIATION OF RIGHTS
12. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares, any share in the
Company may be issued with such preferred, deferred or other special
rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise as the directors may from time to time
determine.
13. Subject to the provisions of the Act, any shares may be purchased,
redeemed or acquired by the Company on such terms and in such manner as
the directors may determine.
13.1 (a) For the purposes of Regulation 13.1 of these Articles
the following defined terms have the meanings
indicated:
"Beneficial owner," "beneficial ownership" or
"beneficially owned," in the context of a Person
whose shares may be redeemed shall be ascertained in
accordance with Rule 13d-3 of Regulation 13D
promulgated by the U.S. Securities and Exchange
Commission pursuant to the U.S. Securities Exchange
Act of 1934, as amended, or any successor to that
Rule.
"Date Fixed for Redemption" shall have the meaning
specified in Regulation 13.1(b) of these Regulations.
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"Fair Market Value" of the shares to be redeemed
means the product of the number of shares redeemed
multiplied by the Redemption Price.
"judgment" means a judgment (i) for a liquidated
amount in a civil matter; (ii) that is final and
conclusive and has not been stayed or satisfied in
full; (iii) that is not directly or indirectly for
the payment of taxes, penalties, fines or charges of
a like nature; (iv) that is not obtained by actual or
constructive fraud or duress; (v) in which the
rendering court has taken jurisdiction on grounds
that are recognized by the common law rules of the
British Virgin Islands; (vi) in which proceedings it
was obtained were not contrary to natural justice or
the public policy of the British Virgin Islands;
(vii) in which the Person against whom the judgment
is given is subject to the jurisdiction of the court
rendering the judgment; and (viii) is not on a claim
for contribution in respect of damages awarded by a
judgment which does not satisfy the foregoing.
"Judgment Amount" means the sum of (i) the liquidated
amount of the Judgement, (ii) interest thereon at the
legal rate of the jurisdiction in which it was
entered from the date of such entry through the Date
Fixed for Redemption, and (iii) reasonable expenses
of the Company (including its reasonable attorney
fees, court costs, administration and overhead costs,
and any other related expenses) of enforcing the
Judgment and/or redeeming its shares to satisfy the
same, less the sum of any amounts thereto fore paid
on, or credited against, the Judgment.
"Notice" shall have the meaning specified in
Regulation 13.1(b) of these Regulations.
"Person" means any natural person, corporation,
company incorporated under the International Business
Companies Act of the British Virgin Islands, limited
liability company, general partnership, limited
partnership, proprietorship, other business
organization, trust, union, association or other
"person" defined in the International Business
Companies Act of the British Virgin Islands.
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"Redemption Price" means (i) if the class of shares
to be redeemed is traded in the over-the-counter
market in the U.S. and not in The Nasdaq National
Market nor on any national securities exchange in the
U.S., the average of the per share closing bid prices
of the shares on the 20 consecutive trading days
immediately preceding the Date Fixed for Redemption,
as reported by The Nasdaq Small Cap Market (or an
equivalent generally accepted reporting service if
quotations are not reported on The Nasdaq Small Cap
Market), or (ii) if the class of shares to be
redeemed is traded in The Nasdaq National Market or
on a national securities exchange in the U.S., the
average for the 20 consecutive trading days
immediately preceding the Date Fixed for Redemption
of the daily per share closing prices of the shares
in The Nasdaq National Market or on the principal
stock exchange in the U.S. on which they are listed,
as the case may be. For purposes of clause (i) above,
if trading in the shares is not reported by The
Nasdaq Small Cap Market, the bid price referred to in
said clause shall be the lowest bid price as reported
in the Nasdaq Electronic Bulletin Board or, if not
reported thereon, as reported in the "pink sheets"
published in the U.S. by National Quotation Bureau,
Incorporated, and, if such shares are not so reported
shall be the price of a share determined by the
directors in good faith. The closing price referred
to in clause (ii) above shall be the last reported
sale price or, in the case no such reported sale
takes place on such day, the average of the reported
closing bid and asked prices, in either case in The
Nasdaq National Market or on the national securities
exchange in the U.S. on which the class of shares is
then listed.
"U.S." shall mean the United States of America.
(b) Without limiting the generality of Regulation 13 of
these Articles, in the furtherance thereof and in
addition to any other rights or remedies available to
the Company at law or in equity, the Company may at
any time and from time to time redeem, at the
Redemption Price per share, all or any of its
outstanding shares beneficially owned by any Person,
or registered in the name of any Person whose name is
entered as a member in the share register, against
whom the Company has a Judgment. At least 30 calendar
days before the date fixed for redemption as
determined by resolution of the directors (the "Date
Fixed for Redemption"), a written redemption notice
(the "Notice") shall be sent to each beneficial owner
and registered holder (if different, from the
beneficial owner) whose shares are to be redeemed by
first-class mail, postage prepaid, at the address of
the beneficial owner and registered holder (if
different, from the beneficial owner) as shown on the
records of the Company, stating: (i) the class(es) of
shares
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and the number of shares in each such class to be
redeemed from the beneficial owner, (ii) the Date
Fixed for Redemption, (iii) information on the method
to be used to determine Redemption Price in
accordance with Regulation 13.1 (a) of these
Articles, (iv) the Judgment Amount and (v) the
address of the place where the certificates for the
shares to be redeemed shall be surrendered for
redemption. On or before the Date Fixed for
Redemption, each beneficial owner and registered
holder (if different, from the beneficial owner) of
the shares to be redeemed shall surrender the
certificates representing these shares to the Company
at the place so designated therefor in the Notice
unless the Judgment Amount has theretofore been
satisfied in full. On the Date Fixed for Redemption
the Company shall pay the Redemption Price for the
shares redeemed by offsetting the Fair Market Value
of the shares redeemed against the Judgment Amount.
If the Fair Market Value of the shares redeemed
exceeds the Judgment Amount, then new certificates
representing the number of shares determined by
dividing such excess by the Redemption Price (and
rounding the quotient down to the nearest whole
share) shall be issued to the Person whose shares
were redeemed. In lieu any fractional shares
otherwise issuable, the Company shall pay an amount
equal to the Redemption Price multiplied by the
fraction. If the Fair Market Value of the shares
redeemed is insufficient to fully satisfy the
Judgment Amount, the Company shall retain the right
to pursue all of its rights and remedies otherwise
available to satisfy the deficiency. If the Notice is
given in the manner provided in this Regulation,
whether or not the certificates covering these shares
are surrendered, all rights with respect to the
redeemed shares shall terminate except for the right
of the Person whose shares are so redeemed to receive
credit by offset against the Judgment Amount as
herein provided. Unless the certificates covering
these shares are received by the company at the place
so designated the Judgment Amount will not be deemed
to have been satisfied in full.
14. If at any time the authorised share capital is divided into different
classes or series of shares, the rights attached to any class or series
(unless otherwise provided by the terms of issue of the shares of that
class or series) may, whether or not the Company is being wound up, be
varied with the consent in writing of the holders of not less than
three fourths of the issued shares of any other class or series of
shares which may be affected by such variation.
15. 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 pan
passu therewith.
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16. No notice of a trust, whether expressed, implied or constructive, shall
be entered on the share register.
TRANSFER OF SHARES
17. Subject to any limitations in the Memorandum, registered share sin the
Company may be transferred by a written instrument of transfer signed
by the transferor and containing the name and address of the
transferee, in the absence of such written instrument of transferor the
directors may accept such evidence of a transfer of shares as they
consider appropriate.
18. Shares issued to bearer may be transferred by deliver y of the
certificate representing such shares.
19. The directors shall have power to close the Share Register for such
period as they shall think fit, but not exceeding 90 days in any one
year.
TRANSMISSION OF SHARES
20. (i) The personal representatives, guardian or trustee as the case
may be deceased, incompetent or bankrupt sole holder of a
registered nominative share shall be the only persons
recognised by the Company as having any title to the share. In
the case of a share registered in the names of two or more
holders, the survivor or survivors, and the personal
representative, guardian or trustee as the case may be of the
deceased, incompetent or bankrupt, shall be the only persons
recognised by the company as having any title to the share but
they shall not be entitled to exercise any rights as a member
of the Company until they have proceeded as set forth in the
following Regulations.
(ii) Any person becoming entitled by operation of law or otherwise
to a share or shares in consequence of the death, incompetence
or bankruptcy of any member may be registered as a member upon
such evidence being produced as may reasonably be required by
the directors. An application by any such person to be
registered as a member for all purposes shall be deemed to be
a transfer of shares of the deceased, incompetent or bankrupt
member and the directors shall treat it a such.
21. Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person to be
named by him be registered as a transferee of such share or shares and
such request shall likewise be treated as it were a transfer.
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ACQUISITION OF OWN SHARES
22. Subject to the provisions of the Act, the Company may purchase, redeem
or otherwise acquire any of its own shares for such consideration as
the Company by resolution of directors considers fit, and either cancel
or hold such shares as treasury shares. The Company may dispose of any
shares held as treasury shares on such terms and conditions as the
Company by a resolution of directors may from time to time determine.
Shares may be purchased or otherwise acquired by the Company in
exchange for newly issued shares in the Company.
23. Subject to the provisions of the Act as to reduction of capital the
Company may be resolution of directors amend its Memorandum of
Association to increase or reduce its authorised capital.
24. Any capital raised by the creation of new shares shall be considered as
part of the original capital, and shall be subject to the same
provisions as if it had been part of the original capital.
25. The Company may amend its Memorandum of Association to
(a) consolidate all or any of its share capital into shares of
larger amount than its existing shares;
(b) 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 and diminish the amount of its authorised share capital
by the amount of the shares so cancelled;
(c) sub-divide its shares or any of them into shares of smaller
amount than is fixed by the Memorandum of Association and so
that subject to the provisions of Regulation 14 the resolution
whereby any share is sub-divided may determine that as between
the holders of the shares resulting from such sub-division one
or more of the shares may have such preferred or other special
rights over or may have such qualified or deferred rights or
be subject to any such restrictions as compared with the other
or others as the Company has power to attach to unissued or
new shares;
(d) subject to the provisions of the Act, reduce its issued share
capital or any capital represented by the capital redemption
reserve fund or by the share premium account in any manner.
26. Where any difficulty arises in regard to any consolidation and division
under Regulation 25, the Company by a resolution of directors may
settle the same as it thinks expedient.
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MEETINGS OF MEMBERS
27. The directors may convene meetings of the members of the Company at
such times and in such manner and places as the directors consider
necessary or desirable, and they shall convene such a meeting upon the
written request of members holding more than 30 percent of the votes of
the outstanding voting shares in the Company.
28. At least seven days notice specifying the place, the day and the hour
of the meeting and the general nature of the business to be conducted
shall be given to such persons whose names on the date the notice is
given appear as members in the share register of the Company.
29. In the case of shares issued to bearer, the directors shall at least 14
days prior to the date of the meeting cause notice of the same,
specifying the place, the day and the hour of the meeting and the
general nature of the business to be conducted, to be published in the
manner prescribed by the Memorandum of Association.
30. A meeting of the members shall be deemed to have been validly called,
notwithstanding that is called in contravention of the requirement to
give notice in Regulations 28 and 29 if shorter notice of the meeting
is agreed by members holding not less than 90 percent of the total
number of shares having a right to attend and vote at the meeting, or
if all such members have waived notice of the meeting. Presence at the
meeting shall be deemed to constitute waiver.
31. The inadvertent failure of the directors to give notice of a meeting to
a member or to the agent or attorney as the case may be, or the fact
that a member or such agent or attorney has not received the notice,
does not invalidate the meeting.
32. A member may be represented at a meeting of members by proxy. The
instrument appointing a proxy shall be in such form as the Chairman of
the meeting shall accept and shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the
person named in such instrument proposes to vote.
33. In the case of shares issued to bear, the holder of such shares may
vote:
in person, by producing the Certificate representing such shares to the
Chairman of the meeting at which the holder proposes to vote;
by proxy, by depositing the certificate with a law firm appointed in
writing by the Company or with a recognised bank or trust company which
shall give a certificate of deposit and voting instructions in the form
below:-
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CERTIFICATE OF DEPOSIT
AND
VOTING INSTRUCTIONS
The Undersigned hereby declares and certifies that bearer-share
certificate(s), representing shares of the share capital of
(the "Company"), an International Business Company organised under the
laws of the British Virgin Islands, is/are being held by the
Undersigned on behalf of the owner(s) of the said shares, who have
authorised the Undersigned to represent the said share with full power
of substitution at a shareholder's meeting to be held with the
following agenda:
( ) In the transaction of such other business as may properly come before
meeting.
To cast their votes on each of the above mentioned agenda matters at
the meeting, and to designate any third party to act in and on its
behalf as the representatives of the said shareholders and these shares
at the meeting; and the Undersigned with continue to keep the said
shares in safekeeping until the date indicated above.
In accordance with this power authority, the Undersigned hereby
designates and appoints Messrs ________________________________________
and each of them with full power of substitution to represent the
Undersigned and said shareholders and to so vote the said shares at the
meeting of shareholders of the Company to be held at
IN WITNESS WHEREOF, the Undersigned has caused this certificate to be
duly executed this day of , 19
________________________________
NAME OF BANK OR TRUST COMPANY
NAME OF LAW FIRM
PROCEEDINGS AT MEETINGS OF MEMBERS
34. No business shall be transacted at any meeting of members unless a
quorum of members is present at the time when the meeting proceeds to
business. A quorum shall consist of one or more members present in
person or by proxy representing at least one half of the votes of the
shares of each class or series of share entitled to vote as a class or
series and the same proportion of the votes of the remaining shares
entitled to vote.
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35. If within one 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; in any other case it shall stand adjourned to the
next business day at the same time and place or to such other time and
place as the directors may determine, and if at the adjourned meeting
there are present within one hour from the time appointed for the
meeting in person or by proxy not less than one third of the votes of
the shares or each class or series of shares entitled to vote on the
resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
36. The Chairman, if any, of the board of directors shall preside as
Chairman at every genera] meeting of the Company.
37. If there is no such Chairman, or if at any meeting he is not present
within fifteen minutes after the time appointed for holding the
meeting, the members present shall choose someone of their number to be
chairman.
38. The Chairman may, with the consent of the meeting, adjourn any meeting
from time to time, and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place.
39. All shares vote as one class and each whole share has one vote. If two
or more persons are jointly entitled to a registered nominative share
and if more than one of such persons is desirous of voting at the
meetings whether in person or by proxy, the vote of that person whose
name appears first among such voting joint holders in the share
register alone shall be counted.
40. A member may be present at a meeting if he participates by telephone or
other electronic means and all members participating at the meeting are
able to hear each other.
41. At any meeting of the members the Chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether a
resolution has been carried or not and the result of his decision shall
be announced to the meeting and recorded in the minutes thereof. If the
Chairman shall have any doubt as to the outcome of any resolution put
to the vote, he shall cause a poll to be taken of all votes cast upon
such resolution, but if the Chairman shall fail to take a poll then any
member present in person or by proxy who disputes the announcement by
the Chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the Chairman shall
thereupon cause a poll to be taken. If a poll is taken at any meeting,
the result thereof shall be duly recorded in the minutes of that
meeting by the Chairman.
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42. Unless a poll be so demanded, a declaration by the Chairman that a
resolution has, on a show of hands, been carried, and an entry to that
effect in the book containing the minutes of the proceedings of the
Company, shall be sufficient evidence of the fact, without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
43. If a poll 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 meeting at which the poll was demanded. The demand
for a poll may be withdrawn.
44. A resolution which has been notified to all members for the time being
entitled to vote and which has been approved by a majority of the votes
of those members in the form of one or more documents in writing by
telex, telegram, cable or other written electronic communication shall
without the need for any notice, become effectual as at the dates
thereof as a resolution of the members.
45. Any person other than an individual shall be regarded as one member and
subject to Regulation 46 the right of any individual to speak for or
represent such member shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the directors
may in good faith seek legal advice from any qualified person and
unless and until a court of competent jurisdiction shall otherwise
rule, the directors may rely and act upon such advice without incurring
any liability to any member.
46. Any person other than an individual which is a member of the Company
may by resolution of its directors or other governing body authorise
such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of members of the Company, and
the person so authorised shall be entitled to exercise the same powers
on behalf of the person which he represents as that person could
exercise if it were an individual member of the Company.
DIRECTORS
47. The first director or directors shall be elected by the subscriber to
the Memorandum of Association. Thereafter, the directors, other than in
the case of a vacancy, shall be elected by the members for such term as
the members may determine and may be removed by them.
48. The number of the directors shall be not less than one nor more than
eight.
49. Each director holds office according to the terms of his appointment
until his successor takes office or until his earlier death,
resignation or removal.
50. A vacancy in the board of directors may be filled by the appointment of
a new director pursuant to a resolution of members or of a majority of
the remaining directors.
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51. A director shall not require a share qualification, but nevertheless
shall be entitled to attend and speak at any meeting of the members and
at any separate meeting of the holders of any class of shares in the
Company.
52. A director by writing under his and deposited at the Registered Office
of the Company may from time to time appoint another director or any
other person to be his alternate. Every such alternate shall be
entitled to be given notice of meetings of the directors and to attend
and vote as a director at any such meeting at which the director
appointing him is not personally present and generally at such meeting
to have and exercise all the powers, rights, duties and authorities of
the director appointing him. Every such alternate shall be deemed to be
an officer of the Company and shall not be deemed to be an agent of the
director appointing him. If undue delay or difficulty would be
occasioned by giving notice to a director of a resolution of which his
approval is sought in accordance with Regulation 80 his alternate (if
any) shall be entitled to signify approval of the same on behalf of
that director. A director by writing under his hand deposited at the
Registered Office of the company may at any time revoke the appointment
of an alternate appointed by him. If a director shall die or cease to
hold the office of director, the appointment of his alternate shall
thereupon cease and terminate.
53. The directors may, by resolution of directors, fix the emoluments of
directors in respect of services rendered or to be rendered in any
capacity to the company. The directors may also be paid such
travelling, hotel and other expenses properly incurred by them in
attending and returning from meetings of the directors, or any
committee of the directors or meetings of the members, or in connection
with the business of the Company as shall be approved by resolution of
directors.
54. Any director who, by request, goes or resides abroad for any purposes
of the Company or who performs services which in the opinion of the
Board go beyond the ordinary duties of a director, may be paid such
extra remuneration (whether by way of salary, commission, participation
in profits or otherwise) as shall be approved by resolution of
directors.
55. The Company may pay to a director who at the request of the Company
holds any office (including a directorship) in, or renders services to
any company in which the Company may be interested, such remuneration
(whether by way of salary, commission, participation in profits or
otherwise) in respect of such office or services as shall be approved
by resolution of directors.
56. The office of director shall be vacated if the director:-
(a) is removed from office by resolution of members or
(b) becomes bankrupt or makes any arrangement or composition with
his creditors generally, or
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(c) becomes of unsound mind, or of such infirm health as to be
incapable of managing his affairs, or
(d) resigns his office by notice in writing to the Company.
57. A director may hold any other office or position of profit under the
Company (except that of auditor) in conjunction with his office of
director, and may act in a professional capacity to the Company on such
terms as to remuneration and otherwise as the directors shall arrange.
58. A director may be or become a director other officer of, or otherwise
interested in any company promoted by the Company, or in which the
Company may be interested, as a member or otherwise, and no director
shall be accountable for any remuneration or other benefits received by
him as director or officer or from his interest in such other company.
The directors may also exercise the voting powers conferred by the
shares in any other company held or owned by the Company in such manner
in all respects as they think fit, including the exercise thereof in
favour of any resolutions appointing them, or any of their number,
directors or officers of such other company, or voting or providing for
the payment of remuneration to the directors or officers of such other
company. A director may vote in favour of the exercise of such voting
rights in manner aforesaid, notwithstanding that he may be, or be about
to become, a director or officer of such other company, and as such in
any other manner is, or may be, interested in the exercise of such
voting rights in manner aforesaid.
59. No director shall be disqualified by reason of his office from
contracting with the Company, either as vendor, purchase or otherwise,
nor shall any such contract or arrangement entered into by or on behalf
of the Company in which any director shall be in any way interested by
avoided, nor shall nay director so contracting or being so interested
be liable to account to the Company for any profit realised by any such
contract or arrangement, by reason of such director holding that office
or of the fiduciary relationship thereby established. The nature of a
director's interest must be declared by him at the meeting of the
directors at which the question of entering into the contract or
arrangement is first taken into consideration, and if the director was
not at the date of that meeting interested in the proposed contract or
arrangement, or shall become interested in a contract or arrangement
after it is made, he shall forthwith after becoming so interested
advise the Company in writing of the fact and nature of his interest. A
general notice to the directors by a director that he is a member of a
specified firm or company, and is to be regarded as interested in any
contract or transaction which may, after the date of notice, be made
with such firm or company shall (if such director shall give the same
at a meeting of the directors, or shall take reasonable steps to secure
that the same is brought up and read at the next meeting of directors
after it is given) be a sufficient declaration of interest in relation
to such contract or transaction with such firm or company.
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60. A director may be counted as one of a quorum upon a motion in respect
of any contract or arrangement which he shall make with the Company, or
in which he is so interested as aforesaid, and may vote upon such
motion. However, if the agreement or transaction cannot be approve by a
resolution of directors without counting the vote or consent of any
interested director the agreement or transaction may only be validated
by approval or ratification by a resolution of members.
OFFICERS
61. (i) The Company may, by a resolution of directors, appoint
officers of the Company at such times as shall be considered
necessary or expedient, and such officers may consist of a
President one or more Vice-Presidents, a Secretary and a
Treasurer and such other officers as may from time to time be
deemed desirable. The officers shall perform such duties as
shall be prescribed at the time of their appointment subject
to any modification in such duties as may be prescribed by the
directors thereafter, but in the absence of any specific
allocation of duties it shall be the responsibility of the
President to manage the day to day affairs of the Company, the
Vice-Presidents to act in order of seniority in the absence of
the President but otherwise to perform such duties as may be
delegated to them by the President, the Secretary to maintain
the registers, minute books and records (other than financial
records) of the Company and to ensure compliance with all
procedural requirements imposed on the Company by applicable
law, and the Treasurer to be responsible for the financial
affairs of the Company.
(ii) Any person may hold more than one office and officer need be a
director or member of the Company. The officers shall remain
in office until removed from office by the directors whether
or not a successor is appointed.
62. Any officer who is a body corporate may appoint any person its duly
authorised representative for the purpose of representing it and
transacting any of the business of the officers.
63. The Registered Agent may certify to whom it may concern the names and
addresses of the directors and officers of the Company and the terms of
their encumbency.
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POWERS OF DIRECTORS
64. The business and affairs of the Company shall be managed by the
directors who may pay all expenses incurred preliminary to and in
connection with the formation and registration of the Company, and may
exercise all such powers of the Company as are not by the Act or by
these Regulations required to be exercised by the members subject to
any delegation of such powers as may be authorised by these Regulations
and to such requirements as may be prescribed by resolution of the
members; but no requirement made by resolution of the members shall
invalidate any prior act of the directors which would have been valid
if such requirement had not been made. Notwithstanding the generality
of the foregoing the Company may by resolution of directors exercise
the several powers granted to it by Section 9 of the Act and by the
Memorandum of Association to inter alia transfer any of its assets in
trust.
65. The Board may entrust to and confer upon any director or officer any of
the powers exercisable by it upon such terms and conditions and with
such restrictions as it thinks fit, and either collaterally with, or to
the exclusion of, its own powers, and may from time to time revoke,
withdraw, alter or vary all or any of such powers. The directors may
delegate any of their powers to committees consisting of such member or
members of their body 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.
66. The Company may from time to time and at any time by resolution of
directors appoint any company, firm or person or body of persons,
whether nominated directly or indirectly by the directors, to be the
attorney or attorneys of the Company for such purposes and with such
powers, authorities any discretions (not exceeding those vested in or
exercisable by the directors under these Regulations) 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 attorney 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.
67. Any director who is a body corporate may appoint any person its duly
authorised representative for the purpose of representing it at Board
Meetings and of transacting any of the business of the directors.
68. 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 Company shall from time to time
by resolution of directors determine.
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69. The directors may by resolution of directors exercise all the powers of
the Company to borrow money and to mortgage or charge its undertakings
and property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for any
debt, liability or obligation of the Company or of any third party.
70. Subject to Regulation 48 the continuing directors may act
notwithstanding any vacancy in their body.
PROCEEDINGS OF DIRECTORS
71. The directors may meet together for the despatch of business, adjourn
and otherwise regulate their meetings as they think fit. Questions
arising at any meeting shall be decided by a majority of votes; in case
of an equality of votes the Chairman shall have a second or casting
vote. A director may at any time summon a meeting of directors.
72. Provided that there shall be more than one director the quorum for
directors' meetings shall be one third of the total number of directors
and a minimum of 7 days notice (exclusive of the day of the meeting)
shall be given to all directors and alternate directors of any meeting
of the board unless all the directors or their alternates on their
behalf shall waive such notice for any particular meeting or any
director shall waive his right to receive notice. Presence at the
meeting shall be deemed to constitute waiver.
73. A sole director shall have full power to represent the Company
notwithstanding the reference in these Regulations to a Board of
Directors consisting of more than one person.
74. The directors may elect a chairman of their meeting and determine the
period for which he is to hold office, but if no such chairman is
present at the time appointed for holding the same, the directors
present shall choose one of their number to be the chairman of such
meeting.
75. The directors may, subject to the Act, delegate any of their powers to
committees consisting of such of their body 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.
76. A committee may elect a chairman of its meeting; if no such chairman is
elected, or if he is not present at the time appointed for holding the
meeting the members of the committee present shall choose one of their
number to be chairman of such meeting.
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77. A committee may meet and adjourn as it thinks proper. Questions arising at
any meeting shall be determined by a majority of votes of its members
present, and in case of an equality of votes, the chairman shall have a
second casting vote.
78. All acts done by any meeting of the directors or of a committee of
directors, or by any person acting as a director, notwithstanding that it
be afterwards discovered that there was some defect in the appointment of
any such directors or persons acting as aforesaid, or that they or any of
them were disqualified are hereby ratified and shall be as valid as if
every such person had been duly appointed and was qualified to be a
director.
79. The directors shall cause the following books to be kept:
(a) minutes of all meetings of directors, members and committees
appointed by them;
(b) copies of all resolutions consented to by directors, members and
committees appointed by them;
(c) such other books and records as may be necessary or desirable in their
opinion to reflect the financial position of the Company.
80. A resolution approved by all the directors or members of a committee for
the time being entitled to receive notice of a meeting of the directors or
of a committee of the directors and taking the form of one or more
documents in writing or messages transmitted by teleprinter from a duly
authenticated source shall be as valid and effectual as if it had been
passed at a meeting of the directors of such committee duly convened and
held. Any one or more members of the board of directors or any committee
thereof may participation a meeting of such board or committee by means of
a conference telephone or similar communication equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a
meeting.
INDEMNITY
81. Subject to the provisions of the Act every director or other officer of the
Company shall be entitled to be indemnified out of the assets of the
Company against all losses or liabilities 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 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 provided
he acted honestly and in good faith with a view to the best interest of the
Company and except for his own willful mis-conduct or negligence.
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SEAL
82. The directors shall provide for the safe custody of the seal, and every
instrument to which the seal shall be affixed shall be signed by one or
more persons so authorised from time to time by the directors. If so
authorised by resolution of directors, a facsimile of the seal and of
the signatures of any authorised signatory as is herein provided may be
reproduced by printing or other means on any instrument and shall have
the same force and validity as if the seal had been affixed to such
instrument and the same had been signed as hereinbefore described.
DIVIDEND AND RESERVES
83. The directors may from time to time declare and pay a dividend whether
interim or final and whether in money or in specie, but no dividend
shall be declared and paid:-
(1) except out of surplus;
(2) unless the directors determine that immediately after payment
of the dividend;
(a) the Company will be able to satisfy its liabilities
as they become due in the ordinary course of its
business and
(b) the realisable value of the assets of the Company
will not be less than the sum of its total
liabilities (other than deferred taxes) as shown in
the books of account and of its capital.
84. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund
for whatever purpose, and may invest the sum so set apart as a reserve
fund upon such securities as they may select.
85. The directors may deduct from the dividends payable to any shareholder
all such sums of money as may be due from him to the Company.
86. Notice of any dividend that may have been declared shall be given to
each shareholder in manner hereinafter mentioned and all dividends
unclaimed for three years after having been declared may be forfeited
by the directors for the benefit of the Company.
87. No dividends shall bear interest as against the Company.
88. Any one of the joint holders of a share may give a valid receipt to the
Company, for dividends paid thereon.
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ACCOUNTS
89. The books of account shall be kept at the registered office of the
Company, or at such other place or places as the directors think fit.
90. The directors may be required by a resolution of members to cause to be
made out and lay before the Company in a meeting of members at some
date not later than eighteen months after incorporation of the Company
and subsequently once at least every calendar year a profit and loss
account for a period in the case of the first account since
incorporation of the Company and in any other case, since the preceding
account, made to a date not earlier than the date of the meeting by
more than twelve months, and a balance sheet as at the date to which
the profit or loss of the Company for that financial period, and a true
and fair view of the state of the affairs of the Company as at the end
of that fiscal period.
91. If so required by the members, a copy of such profit and loss account
and balance sheet shall be served on every member in the manner to that
prescribed herein for calling a meeting.
AUDIT
92. The directors may call for the accounts to be examined by an auditor or
auditors and shall do so if required by a resolution of members.
93. The auditors shall be appointed by the directors, unless otherwise
appointed by a resolution of members.
94. The auditors may be shareholders of the Company but no director or
other officer shall be eligible to be an auditor of the Company during
his continuance in office.
95. The remuneration of the auditors of the Company:-
(a) in the case of auditors appointed by the directors, may be
fixed by the directors,
(b) subject to the foregoing, shall be fixed by the company by a
resolution of members.
96. The auditors shall examine each profit and loss account and balance
sheet required to be laid before the Company in accordance with
Regulation 90 and shall state in a written report whether or not:-
(a) in their opinion the profit and loss account and balance sheet
give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the state of
affairs of the Company at the end of that period;
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(b) all the information and explanations required by the auditors
have been obtained.
97. The report of the auditors shall be annexed to the accounts and shall
be read at the meeting, if any, at which the accounts are laid before
the Company.
98. Every auditor of the company shall have a right of access at all times
to the books of account and vouchers of the Company, and shall be
entitled to require from the officers of the Company such information
and explanations as he thinks necessary for the performance of the
duties of the auditors.
99. The auditors of the Company shall be entitled to receive notice of, and
to attend any meeting of members of the Company at which the Company's
profit and loss account and balance sheet are to be presented in
accordance with Regulation 90.
CAPITALISATION OF PROFITS AND BONUS SHARES
100. The directors may resolve that it is desirable to capitalise any part
of the amount for the time being standing to the credit of the
Company's surplus account or otherwise available for distribution as a
dividend and accordingly that such sum be set free for distribution
amongst the members who would have been entitled thereto if distributed
by way of dividend and in the same proportions on condition that the
same be not paid in cash but applied either in or towards paying up in
full unissued shares or debentures of the Company to be allotted and
distributed credited as fully paid to and amongst such members.
101. A share allotted in accordance with Regulation 100 hereof shall be
treated for all purposes as having been issued for money equal to the
surplus that is transferred to capital upon the issue of the share.
102. In the case of an allotment of authorised but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall
be transferred from surplus to capital at the time of the allotment.
103. In the case of an allotment of authorised but unissued shares without
par value, the amount designated by the directors shall be transferred
from surplus to capital at the time of the allotment, except that the
Company by resolution of directors must designate as capital an amount
that is at least equal to the amount that the shares are entitled to as
preference if any in the assets of the Company upon liquidation of the
Company.
104. The allotment of bonus shares shall for the purposes of the Act be
treated as a dividend of shares.
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105. The directors shall make all appropriations and applications of the
surplus thereby resolved to be capitalised and all allotments and
issues of fully-paid shares or debentures if any, and generally shall
do all acts and thinks required to give effect thereto, with full power
to the directors to ignore fractions altogether or to determine that
payment be made in cash or otherwise as they think fit in the case of
shares or debentures becoming distributable in fractions, and also to
authorise any person to enter on behalf of all the members entitled
thereto into an agreement with the Company providing for the allotment
to them respectively, credited as fully paid, of any further shares or
debentures to which they may be entitled upon such capitalisation, and
any agreement made under such authority shall be effective and binding
on all such shareholders. The directors may appoint any person to sign
on behalf of the person entitled to participate in the distribution any
contract necessary or desirable for giving effect thereto and such
appointment shall be effective and binding upon the shareholders.
NOTICES
106. A notice may be served by the Company upon any registered nominative
shareholder either personally or by posting it by airmail service in a
prepaid letter addressed to him at his address as shown in the share
register or by cable or by telex should the directors think it
appropriate and in the case of the holders of shares issued to bearer
notice may be served by the Company in the manner prescribed by the
Memorandum.
107. All notices directed to be given to the shareholders 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
Shareholders, and notice so given shall be sufficient notice to all the
holders of such share.
108. Any notice, if served post, shall be deemed to have been served within
ten days of posting and in proving such service, it shall be sufficient
to prove that the letter containing the notice was properly addressed
and put into the Post Office. Notices by cable or by telex shall be
deemed to have been served 24 hours after despatch.
109. Notice may be served on the Company by posting it by prepaid service
addressed to the Company at its Registered Office or to its Registered
Agent.
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PENSION AND SUPERANNUATION FUNDS
110. The directors may establish and maintain or procure the establishment
and maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities pensions, allowances or emoluments to any
persons who are or were at any time in the employment or service of the
Company or any Company which is a subsidiary of the Company or is
allied to or associated with the Company or with any such subsidiary or
who are or were at any time directors or officers of the Company or of
any such other Company as aforesaid or who hold or held any salaried
employment or office in the Company or such other Company, or any
persons in whose welfare the Company or any such other company as
aforesaid is or has been at any time interested, and to the wives,
widows, families and dependants of any such person, and may make
payments for or towards the insurance of any such persons as aforesaid,
and may do any of the matters aforesaid either alone or in conjunction
with any such other company as aforesaid. Subject always if the Act
shall so require to particulars with respect thereto being disclosed to
the shareholders, and to the proposals being approved by the company by
resolution of members, a director holding any such employment or office
shall be entitled to participate in and retain for his own benefit any
such donation, gratuity, pension, allowance or emolument.
WINDING UP
111. The Company may commence winding up and dissolve by resolution of
members save that if the Company has never issued shares, by resolution
of directors. The Company and its liquidator shall wind up the affairs
of the Company pursuant to the provisions of the Act.
ARBITRATION
112. Whenever any differences arise between the Company on the one hand and
any of the shareholders, their executors, administrators or assigns on
the other hand touching the true intent and construction or the
incidence or consequences of these presents or of the Act, touching
anything then or thereafter done or executed, omitted or suffered in
pursuance of the Act or touching any breach or alleged breach or
otherwise relating to the premises or to these presents or to any Act
affecting the Company or to any of the affairs of the Company, such
difference shall unless the parties agree to refer the same to a single
arbitrator be referred to two arbitrators shall before entering on the
reference appoint an umpire.
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113. If either party to the reference makes default in appointing an
arbitrator either originally or by way of substitution (in the event
that an appointed arbitrator shall dies, be incapable of acting or
refuse to act) for ten days after the other party has given him notice
to appoint the same, such other party may appoint an arbitrator to act
in the place of the arbitrator of the defaulting party.
AMENDMENT TO ARTICLES
114. The Company may by resolution of directors or by resolution of members
alter or modify these Regulations as originally drafted or as amended
from time to time.
UNDER FOREIGN LAW
115. The Company may by a resolution of directors or a resolution of members
continue as a company incorporated under the laws of another
jurisdiction which may permit such continuation and in the manner
provided by those laws and may by a resolution of directors or of
members amend its Memorandum and Articles to be consistent therewith.
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