EXHIBIT 3.1
THE COMPANIES LAW (2003 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
51JOB, INC.
ADOPTED BY SPECIAL RESOLUTION PASSED ON
26th April 2004
1. The name of the Company is 51JOB, INC.
2. The Registered Office of the Company shall be at the offices of M&C
Corporate Services Limited, P.O. Box 309 GT, Ugland House, South Church Street,
George Town, Grand Cayman, Cayman Islands, or at such other place as the
Directors may from time to time decide.
3. The objects for which the Company is established are unrestricted and the
Company shall have full power and authority to carry out any object not
prohibited by the Companies Law (2003 Revision) or as the same may be revised
from time to time, or any other law of the Cayman Islands.
4. The liability of each Member is limited to the amount from time to time
unpaid on such Member's Shares.
5. The authorised share capital of the Company is US$50,000 divided into
500,000,000 common shares of a nominal or par value of US$0.0001 each. The
Company has the power to redeem or purchase any of its shares and to increase or
reduce the said capital subject to the provisions of the Companies Law (2003
Revision) and the Articles of Association and to issue any part of its capital,
whether original, redeemed or increased with or without any preference, priority
or special privilege or subject to any postponement of rights or to any
conditions or restrictions and so that unless the conditions of issue shall
otherwise expressly declare every issue of shares whether declared to be
preference or otherwise shall be subject to the powers hereinbefore contained.
6. The Company has the power to register by way of continuation as a body
corporate limited by shares under the laws of any jurisdiction outside the
Cayman Islands and to be deregistered in the Cayman Islands.
7. Capitalised terms that are not defined in this Amended and Restated
Memorandum of Association bear the same meaning as those given in the Articles
of Association of the Company.
THE COMPANIES LAW (2003 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
51JOB, INC.
ADOPTED BY SPECIAL RESOLUTION PASSED ON
26th April 2004
1. In these Articles Table A in the Schedule to the Law does not apply and,
unless there is something in the subject or context inconsistent therewith,
"ADS" means an American Depositary Share, each representing 1 (one) Common
Share.
"AFFILIATE" of a specified person means a person who, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such specified person.
"ARTICLES" means these Articles as originally framed or as from time to
time altered by Special Resolution.
"AUDIT COMMITTEE" shall mean the audit committee established pursuant to
Article 108.
"AUDITORS" means the persons for the time being performing the duties of
auditors of the Company (if any).
"BOARD" means the Board of the Directors of the Company.
"THE CHAIRMAN" shall mean the Chairman presiding at any meeting of members
or of the Board.
"COMPANY" means 51job, Inc.
"COMPENSATION COMMITTEE" means the compensation committee established
pursuant to Article 108.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
with") means the possession, directly or indirectly, or as trustee or executor,
of the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, as trustee or
executor, by contract or credit arrangement or otherwise;
"DEBENTURE" means debenture stock, mortgages, bonds and any other such
securities of the Company whether constituting a charge on the assets of the
Company or not.
"DIRECTORS" means the directors for the time being of the Company.
"DIVIDEND" includes interim dividends and bonus dividends.
"ELECTRONIC RECORD" has the same meaning as in the Electronic Transactions
Law (2003 Revision).
"FAMILY MEMBER" means a person's spouse, parents, children and siblings,
whether by blood, marriage or adoption or anyone residing in such person's home.
"INDEPENDENT DIRECTOR" shall mean a Director who is an independent
director as defined in the NASD Manual & Notices to Members as amended from time
to time.
"THE LAW" shall mean the Companies Law (2003 Revision) of the Cayman
Islands and any amendments thereto or re-enactments thereof for the time being
in force and includes every other law incorporated therewith or substituted
therefor.
"MEMBER" shall bear the same meaning as in the Law.
"MEMORANDUM" means the memorandum of association of the Company as
originally framed or as from time to time altered by Special Resolution.
"MONTH" means calendar month.
"NASDAQ" shall mean the Nasdaq National Market in the United States.
"NASDAQ RULES" means the relevant code, rules and regulations, as amended
from time to time, applicable as a result of the original and continued
quotation of any Shares or ADSs on Nasdaq, including without limitation the NASD
Manual & Notices to Members and the Listing Rules.
"ORDINARY RESOLUTION" means a resolution passed by a simple majority of
the Members as, being entitled to do so, vote in person or, where proxies are
allowed, by proxy or, in the case of corporations, by their duly authorised
representatives, at a general meeting, and includes a unanimous written
resolution. In computing the majority when a poll is demanded regard shall be
had to the number of votes to which each Member is entitled by the Articles.
"PAID-UP" means paid-up and/or credited as paid-up.
"PERSON" means an individual, corporation, partnership, limited
partnership, limited liability company, syndicate, trust, association or entity
or government, political subdivision, agency or instrumentality of a government.
"PRINCIPAL REGISTER" shall mean the register of members of the Company
maintained at such place within or outside the Cayman Islands as the Board shall
determine from time to time.
"REGISTER OF MEMBERS" means the register maintained in accordance with the
Law and includes (except where otherwise stated) any duplicate Register of
Members.
"REGISTERED OFFICE" means the registered office for the time being of the
Company.
"RELATED PARTY" shall mean:
(a) any Director or executive officer of the Company;
(b) any nominee for election as a Director;
(c) any holder who is known to the Company to own of record or
beneficially more than 5% of any class of the Company's voting
securities;
(d) any Family Member of the foregoing persons; and
(e) any person that is an affiliate of any of the above.
"RELATED PARTY TRANSACTIONS" shall mean a transaction (other than a
transaction of a revenue nature in the ordinary course of business) between the
Company or any of its subsidiaries and a Related Party.
"SEAL" means the common seal of the Company and includes every duplicate
seal.
"SEC" shall mean the US Securities and Exchange Commission.
"SECRETARY" includes an Assistant Secretary and any person appointed to
perform the duties of Secretary of the Company.
"SHARE" and "SHARES" means a share or shares in the Company and includes a
fraction of a share.
"SHARE PREMIUM ACCOUNT" means the account of the Company which the Company
is required by the Law to maintain, to which all premiums over nominal or par
value received by the Company in respect of issues of Shares from time to time
are credited.
"SPECIAL RESOLUTION" means (i) a resolution passed by a majority of not
less than two-thirds of such Members as, being entitled to do so, vote in person
or, where proxies are allowed, by proxy or, in the case of corporations, by
their duly authorised representatives, at a general meeting of which notice
specifying the intention to propose the resolution as a special resolution has
been duly given, or (ii) a resolution which has been approved in writing by all
of the Members entitled to vote at a general meeting of the company in one or
more instruments each signed by one or more of the Members aforesaid, and the
effective date of the special resolution so adopted shall be the date on which
the instrument or the last of such instruments, if more than one, is executed.
"UNITED STATES" shall mean the United States of America, its territories,
its possessions and all areas subject to its jurisdiction;
"US$" shall mean United States dollars, the lawful currency of the United
States;
"WRITTEN" and "IN WRITING" include all modes of representing or
reproducing words in visible form, including in the form of an Electronic
Record.
2. Words importing the singular number include the plural number and
vice-versa.
Words importing the masculine gender include the feminine gender.
Words importing persons include corporations.
References to provisions of any law or regulation shall be construed as
references to those provisions as amended, modified, re-enacted or replaced from
time to time.
Any phrase introduced by the terms "including", "include", "in particular"
or any similar expression shall be construed as illustrative and shall not limit
the sense of the words preceding those terms.
Headings are inserted for reference only and shall be ignored in
construing these Articles.
References in these Articles to a document being "executed" include
references to its being executed under hand or under seal or by any other method
authorised by the Company.
Any words or expressions defined in the Law will (if not inconsistent with
the subject or context in which they appear) have the same meaning in these
Articles, save that the word "company" includes any body corporate.
References to a meeting will not be taken as requiring more than one
person to be present if any quorum requirement can be satisfied by one person.
Where these Articles refer to months or years, these are all calendar
months or years.
Where these Articles give any power or authority to any person, this power
or authority can be used on any number of occasions, unless the way in which the
words are used does not allow this meaning.
SHARE CAPITAL
3. The authorised share capital of the Company is US$50,000 divided into
500,000,000 common shares of a nominal or par value of US$0.0001 each ("COMMON
SHARES").
ISSUE OF SHARES
4. Subject to applicable law, rules, regulations, the Nasdaq Rules and the
relevant provisions, if any, in the Memorandum and these Articles and to any
direction that may be given by the Company in a general meeting and without
prejudice to any special rights previously conferred on the holders of existing
Shares, the Directors may allot, issue, grant options, rights or warrants over
or otherwise dispose of Shares of the Company (including fractions of a Share)
with or without preferred, deferred, qualified or other special rights or
restrictions, whether with regard to
dividend, voting, return of capital or otherwise and to such persons, at such
times and on such other terms as they think proper provided that, where any
issue of shares (which, for the avoidance of doubt, shall include any issue of
Common Shares or any shares with preferred, deferred, qualified or other special
rights or restrictions, whether with regard to dividend, voting, return of
capital or otherwise ("PREFERRED SHARES")) is proposed and such shares proposed
to be issued are equal to or exceed 20 per cent. by par value of the par value
of all then issued shares (including Common Shares and any Preferred Shares and,
in the case of any Preferred Shares, where appropriate whether considering such
Preferred Shares before or after any conversion of such Preferred Shares to
Common Shares in accordance with their terms), then the prior approval by
Ordinary Resolution of the holders of the Common Shares, voting together as one
class, shall be required. The Company shall not issue Shares in bearer form.
5. Upon approval of the Directors, such number of Common Shares, or other
shares or securities of the Company, as may be required for such purposes shall
be reserved for issuance in connection with an option, right, warrant or other
security of the Company or any other person that is exercisable for, convertible
into, exchangeable for or otherwise issuable in respect of such Common Shares or
other shares or securities of the Company.
6. The holders of the Common Shares shall be:
(a) entitled to dividends in accordance with the relevant provisions of
these Articles;
(b) entitled to and are subject to the provisions in relation to winding
up of the Company provided for in these Articles;
(c) entitled to attend general meetings of the Company and shall be
entitled to one vote for each Common Share registered in his name in the
Register of Members, both in accordance with the relevant provisions of these
Articles.
7. All Common Shares shall rank pari passu with each other in all respects.
REGISTER OF MEMBERS AND SHARE CERTIFICATES
8. The Company shall maintain a register of its Members and every person
whose name is entered as a Member in the register of Members shall be entitled
without payment to receive within two months after allotment or lodgement of
transfer (or within such other period as the conditions of issue shall provide)
one certificate for all his Shares or several certificates each for one or more
of his Shares upon payment of fifty cents (US$0.50) for every certificate after
the first or such less sum as the Directors shall from time to time determine
provided that in respect of a Share or Shares held jointly by several persons
the Company shall not be bound to issue more than one certificate and delivery
of a certificate for a Share to one of the several joint holders shall be
sufficient delivery to all such holders.
9. The Board shall cause to be kept at such place within or outside the
Cayman Islands as they deem fit a principal register of the Members and there
shall be entered therein the particulars of the Members and the Shares issued to
each of them and other particulars required under applicable law, rules or
regulations or the Nasdaq Rules.
10. If the Board considers it necessary or appropriate, the Company may
establish and maintain a branch register or registers of Members at such
location or locations within or outside the Cayman Islands as the Board thinks
fit. The principal register and the branch register(s) shall together be treated
as the register for the purposes of these Articles.
11. The Board may, in its absolute discretion, at any time transfer any Share
upon the principal register to any branch register or any Share on any branch
register to the principal register or any other branch register.
12. The Company shall as soon as practicable and on a regular basis record in
the principal register all transfers of Shares effected on any branch register
and shall at all times maintain the principal register in such manner to show at
all times the Members for the time being and the Shares respectively held by
them, in all respects in accordance with the Law.
13. The register may be closed at such times and for such periods as the Board
may from time to time determine, either generally or in respect of any class of
Shares, provided that the register shall not be closed for more than 30 days in
any year (or such longer period as the Members may by Ordinary Resolution
determine provided that such period shall not be extended beyond 60 days in any
year). The Company shall, on demand, furnish any person seeking to inspect the
Register of Members or part thereof which is closed by virtue of this Article
with a certificate under the hand of the Secretary stating the period for which,
and by whose authority, it is closed.
14. Every certificate for Shares or debentures or representing any other form
of security of the Company may be issued under the seal of the Company, which
shall only be affixed with the authority of the Board or may be executed under
hand by any two directors or as may otherwise be directed by the Board. All
certificates surrendered to the Company for transfer shall be cancelled and no
new certificate shall be issued until the former certificate for a like number
of Shares shall have been surrendered and cancelled.
15. Every Share certificate shall specify the number of Shares in respect of
which it is issued and the amount paid thereon or the fact that they are fully
paid, as the case may be, and may otherwise be in such form as the Board may
from time to time prescribe.
16. The Company shall not be bound to register more than four persons as joint
holders of any Share. If any Shares shall stand in the names of two or more
persons, the person first named in the register shall be deemed the sole holder
thereof as regards service of notices and, subject to the provisions of these
Articles, all or any other matters connected with the Company, except the
transfer of the Share.
17. If a Share certificate is defaced, lost or destroyed, it may be replaced
on payment of such reasonable fee, if any, as the Board may from time to time
prescribe and on such terms and conditions, if any, as to publication of
notices, evidence and indemnity, as the Board thinks fit and where it is defaced
or worn out, after delivery up of the old certificate to the Company for
cancellation.
18. All certificates surrendered to the Company for transfer shall be
cancelled and no new certificate shall be issued until the former certificate
for a like number of Shares shall have been surrendered and cancelled.
TRANSFER OF SHARES
19. The instrument of transfer of any Share shall be in writing in the usual
or common form or any other form approved by the Board, and shall be executed by
or on behalf of the transferor and the transferor shall be deemed to remain the
holder of a Share until the name of the transferee is entered in the register in
respect thereof.
20. (a) The Board may, in its absolute discretion, and without assigning any
reason, refuse to register a transfer of any Share which is not fully paid up or
upon which the Company has a lien.
(b) The Board may also decline to register any transfer of any Share
unless:
(i) the instrument of transfer is lodged with the Company
accompanied by the certificate for the Shares to which it
relates (which shall upon registration of the transfer be
cancelled) and such other evidence as the Board may
reasonably require to show the right of the transferor to
make the transfer;
(ii) the instrument of transfer is in respect of only one class of
Shares;
(iii) the instrument of transfer is properly stamped (in
circumstances where stamping is required);
(iv) in the case of a transfer to joint holders, the number of
joint holders to which the Share is to be transferred does
not exceed four;
(v) the Shares concerned are free of any lien in favour of the
Company;
(vi) a fee of such maximum amount as the Board may from time to
time determine to be payable is paid to the Company in
respect thereof;
(vii) The Company shall not be obligated to make any transfer to an
infant or to a person in respect of whom an order has been
made by a competent court or official on the grounds that he
is or may be suffering from mental disorder or is otherwise
incapable of managing his affairs or under other legal
disability; and
(viii) Upon every transfer of Shares the certificate held by the
transferor shall be given up to be cancelled, and shall
forthwith be cancelled accordingly, and a new certificate
shall be issued without charge to the transferee in respect
of the Shares transferred to him, and if any of the Shares
included in the certificate so given up shall be retained by
the transferor, a new certificate in respect thereof shall be
issued to him without charge. The Company shall also retain
the instrument(s) of transfer.
21. The registration of transfers may be suspended at such time and for such
periods as the Directors may from time to time determine, provided always that
such registration shall not be
suspended for more than forty-five days in any year. If the Board shall refuse
to register a transfer of any Share, it shall, within two months after the date
on which the transfer was lodged with the Company, send to each of the
transferor and the transferee notice of such refusal.
REDEEMABLE SHARES
22. (a) Subject to the provisions of the Law, the Nasdaq Rules and the
Memorandum, Shares may be issued on the terms that they are, or at the option of
the Company or the holder are, to be redeemed on such terms and in such manner
as the Company, before the issue of the Shares, may by Special Resolution
determine.
(b) Subject to the provisions of the Law, the Nasdaq Rules and the
Memorandum, the Company may purchase its own Shares (including fractions of a
Share), including any redeemable Shares, provided that the manner of purchase
has first been authorised by the Company in a general meeting by Ordinary
Resolution and may make payment therefor in any manner authorised by the Law and
the Nasdaq Rules, including out of capital.
VARIATION OF RIGHTS OF SHARES
23. If at any time the share capital of the Company is divided into different
classes of Shares, the rights attached to any class (unless otherwise provided
by the terms of issue of the Shares of that class) may, whether or not the
Company is being wound-up and except where these Articles or the Law impose any
stricter quorum, voting or procedural requirements in regard to the variation of
rights attached to a specific class, be varied with the consent in writing of
the holders of 75% of the issued Shares of that class, or with the sanction of a
Special Resolution passed at a general meeting of the holders of the Shares of
that class.
24. The provisions of these Articles relating to general meetings shall apply
to every such general meeting of the holders of one class of Shares except that
the necessary quorum shall be one person holding or representing by proxy at
least one-third of the issued Shares of the class and that any holder of Shares
of the class present in person or by proxy may demand a poll.
25. For purposes of this provision any particular issue of Shares not carrying
the same rights (whether as to rate of dividend, redemption or otherwise) as any
other Shares of the time being in issue, shall be deemed to constitute a
separate class of Shares. 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. The rights of holders of Common Shares shall not be deemed to be
varied by the creation or issue of Shares with preferred or other rights which
may be effected by the Directors as provided in these Articles without any vote
or consent of the holders of Common Shares.
COMMISSION ON SALE OF SHARES
26. The Company may in so far as the Law from time to time permits pay a
commission to any person in consideration of his subscribing or agreeing to
subscribe whether absolutely or conditionally for any Shares of the Company.
Such commissions may be satisfied by the payment of cash or the lodgement of
fully or partly paid-up Shares or partly in one way and partly in the other. The
Company may also on any issue of Shares pay such brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
27. The Company shall not be bound by or compelled to recognise in any way
(even when notified) any equitable, contingent, future, or partial interest in
any Share, or (except only as is otherwise provided by these Articles or the
Law) any other rights in respect of any Share other than an absolute right to
the entirety thereof in the registered holder.
LIEN ON SHARES
28. The Company shall have a first and paramount lien on all Shares (whether
fully paid-up or not) registered in the name of a Member (whether solely or
jointly with others) for all debts, liabilities or engagements to or with the
Company (whether presently payable or not) by such Member or his estate, either
alone or jointly with any other person, whether a Member or not, but the
Directors may at any time declare any Share to be wholly or in part exempt from
the provisions of this Article. The registration of a transfer of any such Share
shall operate as a waiver of the Company's lien thereon. The Company's lien on a
Share shall also extend to any amount payable in respect of that Share.
29. The Company may sell, in such manner as the Directors think fit, any
Shares on which the Company has a lien, if a sum in respect of which the lien
exists is presently payable, and is not paid within fourteen days after notice
has been given to the holder of the Shares or to the person entitled to it in
consequence of the death or bankruptcy of the holder, demanding payment and
stating that if the notice is not complied with the Shares may be sold.
30. To give effect to any such sale, the Directors may authorise any person to
execute an instrument of transfer of the Shares sold to, or in accordance with
the directions of, the purchaser. The purchaser or his nominee 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
sale or the exercise of the Company's power of sale under these Articles.
31. The net proceeds of such sale after payment of such costs, shall be
applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and any residue, shall (subject to a like lien
for sums not presently payable as existed upon the Shares before the sale) be
paid to the person entitled to the Shares at the date of the sale.
CALL ON SHARES
32. (a) The Directors may from time to time make calls upon the Members in
respect of any monies unpaid on their Shares (whether on account of the nominal
value of the Shares or by way of premium or otherwise) and not by the conditions
of allotment thereof made payable at fixed terms, provided that no call shall be
payable at less than one month from the date fixed for the payment of the last
preceding call, and each Member shall (subject to receiving at least fourteen
days notice specifying the time or times of payment) pay to the Company at the
time or times so specified the amount called on the Shares. A call may be
revoked or postponed as the Directors may determine. A call may be made payable
by instalments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a Share shall be jointly and severally liable
to pay all calls in respect thereof.
33. If a sum called in respect of a Share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall pay
interest on the sum from the day appointed for payment thereof to the time of
actual payment at such rate not exceeding ten per cent per annum as the
Directors may determine, but the Directors shall be at liberty to waive payment
of such interest either wholly or in part.
34. Any sum which by the terms of issue of a Share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of the
Share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a call duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest forfeiture or otherwise shall apply as if such sum had become payable
by virtue of a call duly made and notified.
35. The Directors may, on the issue of Shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
36. (a) The Directors may, if they think fit, receive from any Member
willing to advance the same, all or any part of the monies uncalled and unpaid
upon any Shares held by him, and upon all or any of the monies so advanced may
(until the same would but for such advances, become payable) pay interest at
such rate not exceeding (unless the Company in general meeting shall otherwise
direct) seven per cent per annum, as may be agreed upon between the Directors
and the Member paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member paying
such sum to any portion of a dividend declared in respect of any period prior to
the date upon which such sum would, but for such payment, become presently
payable.
FORFEITURE OF SHARES
37. (a) If a Member fails to pay any call or instalment of a call or to make
any payment required by the terms of issue on the day appointed for payment
thereof, the Directors may, at any time thereafter during such time as any part
of the call, instalment or payment remains unpaid, give notice requiring payment
of any part of the call, instalment or payment that is unpaid, together with any
interest which may have accrued and all expenses that have been incurred by the
Company by reason of such non-payment. Such notice shall name a day (not earlier
than the expiration of fourteen days from the date of giving of the notice) on
or before which the payment required by the notice is to be made, and shall
state that, in the event of non-payment at or before the time appointed the
Shares in respect of which such notice was given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not complied
with, any Share in respect of which the notice has been given may at any time
thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the Directors to that effect. Such forfeiture shall
include all dividends declared in respect of the forfeited Share and not
actually paid before the forfeiture.
(c) A forfeited Share may be sold or otherwise disposed of on such terms
and in such manner as the Directors think fit, and at any time before a sale or
disposition, the forfeiture may be cancelled on such terms as the Directors see
fit.
38. A person whose Shares have been forfeited shall cease to be a Member in
respect of the forfeited Shares, but shall, notwithstanding, remain liable to
pay to the Company all monies which, at the date of forfeiture, were payable by
him to the Company in respect of the Shares together with interest thereon, but
his liability shall cease if and when the Company shall have received payment in
full of all monies whenever payable in respect of the Shares.
39. A certificate in writing under the hand of one Director or the Secretary
of the Company that a Share in the Company has been duly forfeited on a date
stated in the declaration shall be conclusive evidence of the fact therein
stated as against all persons claiming to be entitled to the Share. The Company
may receive the consideration given for the Share on any sale or disposition
thereof and may execute a transfer of the Share in 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 to the application of the
purchase money, if any, nor shall his title to the Share be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture,
sale or disposal of the Share.
40. The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum which, by the terms of issue of a Share, becomes
payable at a fixed time, whether on account of the nominal value of the Share or
by way of premium as if the same had been payable by virtue of a call duly made
and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
41. The Company shall be entitled to charge a fee not exceeding one dollar
(US$1.00) on the registration of every grant of probate, letter of
administration, certificate of death or marriage, power of attorney, or other
instrument.
TRANSMISSION OF SHARES
42. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised by the
Company as having any title to his interest in the Shares, but nothing herein
contained shall release the estate of any such deceased holder from any
liability in respect of any Shares which had been held by him solely or jointly
with other persons.
43. (a) Any person becoming entitled to a Share in consequence of the death
or bankruptcy or liquidation or dissolution of a Member (or in any other way
than by transfer) may, upon such evidence being produced as may from time to
time be required by the Directors and subject as hereinafter provided, elect
either to be registered himself as holder of the Share or to make such transfer
of the Share to such other person nominated by him as the deceased or bankrupt
person could have made and to have such person registered as the transferee
thereof, but the Directors shall, in either case, have the same right to decline
or suspend registration as they would have had in the case of a transfer of the
Share by that Member before his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in writing
signed by him stating that he so elects.
44. A person becoming entitled to a Share by reason of the death or bankruptcy
or liquidation or dissolution of the holder (or in any other case than by
transfer) shall be entitled to the same dividends and other advantages to which
he would be entitled if he were the registered holder of the Share, except that
he shall not, before being registered as a Member in respect of the Share, be
entitled in respect of it to exercise any right conferred by membership in
relation to meetings of the Company, provided, however, that the Directors may
at any time give notice requiring any such person to elect either to be
registered himself or to transfer the Share, and if the notice is not complied
with within ninety days, the Directors may thereafter withhold payment of all
dividends, bonuses or other monies payable in respect of the Share until the
requirements of the notice have been complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION,
ALTERATION OF CAPITAL & CHANGE OF LOCATION OF REGISTERED OFFICE
45. (a) The Company may by Ordinary Resolution:
(i) increase the share capital by such sum as the resolution shall
prescribe and with such rights, priorities and privileges annexed thereto, as
the Company in general meeting may determine;
(ii) consolidate and divide all or any of its share capital into
Shares of larger amount than its existing Shares;
(iii) by subdivision of its existing Shares or any of them divide
the whole or any part of its share capital into Shares of smaller amount than is
fixed by the Memorandum of Association or into Shares without par value;
(iv) cancel any Shares that at the date of the passing of the
resolution have not been taken or agreed to be taken by any person.
(b) All new Shares created in accordance with the provisions of the
preceding Article shall be subject to the same provisions of the Articles with
reference to the payment of calls, liens, transfer, transmission, forfeiture and
otherwise as the Shares in the original share capital.
(c) Subject to the provisions of the Statue and the provisions of these
Articles as regards the matters to be dealt with by Ordinary Resolution, the
Company may by Special Resolution:
(i) change its name;
(ii) alter or add to these Articles;
(iii) alter or add to the Memorandum with respect to any objects,
powers or other matters specified therein; and
(iv) reduce its share capital and any capital redemption reserve
fund.
46. Subject to the provisions of the Law, the Company may by resolution of the
Directors change the location of its Registered Office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
47. For the purpose of determining Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or Members entitled to
receive payment of any dividend, or in order to make a determination of Members
for any other proper purpose, the Directors of the Company may provide that the
register of Members shall be closed for transfers for a stated period in
accordance with Article 13 above. If the register of Members shall be so closed
for the purpose of determining Members entitled to notice of or to vote at a
meeting of Members, such register shall be so closed for at least ten days
immediately preceding such meeting and the record date for such determination
shall be the date of the closure of the register of Members.
48. In lieu of or apart from closing the register of Members, the Directors
may fix in advance or arrears a date as the record date for any such
determination of Members entitled to notice of or to vote at a meeting of the
Members or any adjournment thereof and for the purpose of determining the
Members entitled to receive payment of any dividend. Such record date shall not
be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of the Members entitled to notice of or to vote at a meeting of
Members shall apply to any adjournment of such meeting; provided, however, that
the Directors may fix a new record date for the adjourned meeting.
49. If the register of Members is not so closed and no record date is fixed
for the determination of Members entitled to notice of or to vote at a meeting
of Members or Members entitled to receive payment of a dividend, the date on
which notice of the meeting is mailed or the date on which the resolution of the
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of Members. When a determination of Members
entitled to vote at any meeting of Members has been made as provided in this
section, such determination shall apply to any adjournment thereof.
GENERAL MEETING
50. All general meetings other than annual general meetings shall be called
extraordinary general meetings.
51. (a) The Company shall, if required by the Law, other applicable law,
rules or regulations or the Nasdaq Rules, in each year hold a general meeting as
its annual general meeting and shall specify the meeting as such in the notices
calling it. The annual general meeting for the election of directors of the
Company, and for the transaction of such other business as may properly come
before such meeting, shall be held at such time and place as the Directors shall
appoint and if no other time and place is prescribed by them, it shall be held
at the Registered Office on the second Wednesday in December of each year at ten
o'clock in the morning, provided that the period between the date of one annual
general meeting of the Company and that of the next shall not be longer than
such period as applicable law, rules or regulations or the Nasdaq Rules permit.
(b) At these meetings the report of the Directors (if any) shall be
presented.
52. (a) Extraordinary general meetings of Members for any purpose or
purposes may be called by the Board of Directors pursuant to a resolution duly
adopted by a majority of the members of the entire Board, to be held at such
place, date and time as shall be designated in the notice or waiver of notice
thereof.
(b) The Directors shall on a Members requisition forthwith proceed to
convene an extraordinary general meeting of the Company.
(c) A Members requisition is a requisition of Members of the Company
holding at the date of deposit of the requisition not less than ten per cent. in
par value of the capital of the Company as at that date carries the right of
voting at general meetings of the Company.
(d) The requisition must state the objects of the meeting and must be
signed by the requisitionists and deposited at the Registered Office, and may
consist of several documents in like form each signed by one or more
requisitionists.
(e) If the Directors do not within twenty-one days from the date of the
deposit of the requisition duly proceed to convene a general meeting to be held
within a further twenty-one days, the requisitionists, or any of them
representing more than one-half of the total voting rights of all of
them, may themselves convene a general meeting, but any meeting so convened
shall not be held after the expiration of three months after the expiration of
the said twenty-one days.
(f) A general meeting convened as aforesaid by requisitionists shall be
convened in the same manner as nearly as possible as that in which general
meetings are to be convened by Directors.
53. General meetings of the Company may be held at such place, either within
or without the Cayman Islands, as determined by the Directors. The Board of
Directors may, in its sole discretion, determine that the meeting shall not be
held at any place, but may instead be held solely by means of remote
communication as follows:
(a) if authorised by the Directors in its sole discretion, and subject
to such guidelines and procedures as the Directors may adopt, Members and
proxies entitled to attend and vote but not physically present at a meeting of
Members may, by means of remote communication:
(i) participate in a meeting of Members; and
(ii) be deemed present in person and vote at a meeting of Members
whether such meeting is to be held at a designated place or
solely by means of remote communication.
(b) if authorised by the Directors, any vote taken by written ballot may
be satisfied by a ballot submitted by electronic transmission, provided that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorised by the Member or proxy.
NOTICE OF GENERAL MEETINGS
54. At least twenty (but not more than sixty) days' notice shall be given for
any annual general meeting and any extraordinary general meeting calling for the
passing of a special resolution, and at least fourteen (14) days' notice (but
not more than sixty (60) days' notice) shall be given of any other extraordinary
general meeting. Every notice shall be inclusive of the day on which it is given
or deemed to be given and of the day for which it is given and shall specify
details as are required by applicable law, rules or regulations and the Nasdaq
Rules, provided that a general meeting of the Company shall, whether or not the
notice specified in this Article 54 has been given and whether or not the
provisions of these Articles regarding general meetings have been complied with,
be deemed to have been duly convened if applicable law, rules or regulations and
the Nasdaq Rules so permit and it is so agreed:
(a) in the case of an annual general meeting by all the Members (or
their proxies) entitled to attend and vote thereat or their proxies; and
(b) in the case of an extraordinary general meeting by a majority in
number of the Members (or their proxies) having a right to attend and vote at
the meeting, being a majority together holding not less than ninety-five per
cent in par value of the Shares giving that right.
55. The notice convening an annual general meeting or an extraordinary general
meeting shall specify the meeting as such, and the notice convening a meeting to
pass a special resolution shall specify the intention to propose the resolution
as a special resolution. Notice of every general meeting shall be given to all
Members other than such as, under the provisions hereof or the terms of issue of
the Shares they hold, are not entitled to receive such notice from the Company.
56. There shall appear with reasonable prominence in every notice of general
meetings of the Company a statement that a Member entitled to attend and vote is
entitled to appoint a proxy to attend and vote instead of him and that a proxy
need not be a Member of the Company.
57. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting. In cases where instruments
of proxy are sent out with notices, the accidental omission to send such
instrument of proxy to, or the non-receipt of such instrument of proxy by, any
person entitled to receive notice shall not invalidate any resolution passed or
any proceeding at any such meeting.
58. No business may be transacted at any general meeting, other than business
that is either (A) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Directors (or any duly authorised
committee thereof), (B) otherwise properly brought before the annual general
meeting by or at the direction of the Directors (or any duly authorised
committee thereof) or (C) otherwise properly brought before the annual general
meeting by any Member of the Company who (i) is a Member of record on both (x)
the date of the giving of the notice provided for in Article 59 and (y) the
record date for the determination of Members entitled to vote at such annual
meeting and (ii) complies with the notice procedures set forth in Article 59.
59. In addition to any other applicable requirements, for business to be
properly brought before an annual general meeting by a Member, such Member must
have given timely notice thereof in proper written form to the Secretary of the
Company.
(a) To be timely, a Member's notice shall be delivered to the Secretary
at the principal executive offices of the Company not less than seven (7) days
nor more than sixty (60) days prior to the first anniversary of the preceding
year's annual general meeting; provided, however, that in the event that the
date of the annual general meeting is advanced by more than thirty (30) days or
delayed by more than sixty (60) days from such anniversary date, notice by the
Member to be timely must be delivered not earlier than the sixtieth (60th) day
prior to such annual general meeting and not later than the close of business on
the later of the seventh (7th) day prior to such annual general meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting is first made.
(b) To be in proper written form, a Member's notice to the Secretary
must set forth as to each matter such Member proposes to bring before the annual
general meeting (1) a brief description of the business desired to be brought
before the annual general meeting and the reasons for conducting such business
at the annual general meeting, (2) the name and record address of such Member,
and (3) the class or series and number of Shares of the Company which are owned
beneficially or of record by such Member.
(c) No business shall be conducted at the annual general meeting except
business brought before the annual general meeting in accordance with the
procedures set forth in this Article 59, provided, however, that, once business
has been properly brought before the annual general meeting in accordance with
such procedures, nothing in this Article 59 shall be deemed to preclude
discussion by any Member of any such business. If the Chairman of an annual
general meeting determines that business was not properly brought before the
annual general meeting in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the business was not properly brought before
the meeting and such business shall not be transacted.
PROCEEDINGS AT GENERAL MEETINGS
60. For all purposes the quorum for a general meeting shall be one or more
Members present in person or by proxy or corporate representative holding not
less than 33-1/3% of the outstanding voting shares in the capital of the
Company. No business (except the appointment of a Chairman of the meeting) shall
be transacted at any general meeting unless the requisite quorum shall be
present at the commencement of the business.
61. A person may participate at a general meeting by conference telephone or
other communications equipment by means of which all the persons participating
in the meeting can communicate with each other. Participation by a person in a
general meeting in this manner is treated as presence in person at that meeting.
62. A resolution (including a Special Resolution) in writing (in one or more
counterparts) signed by all Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or, being corporations,
signed by their duly authorised representatives) shall be as valid and effective
as if the resolution had been passed at a general meeting of the Company duly
convened and held.
63. If a quorum is not present within half an hour from the time appointed for
the meeting, the meeting, if convened upon the requisition of Members, shall be
dissolved and in any other case it shall stand adjourned to the same day in the
next week at the same time and place or to such other day, time or such other
place as the Directors may determine. Members present at a duly called or
convened meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough Members to
leave less than a quorum.
64. The person chairing the meeting, if any, of the Board of Directors shall
preside as Chairman at every general meeting of the Company, or if there is no
such Chairman, or if he shall not be present within thirty minutes after the
time appointed for the holding of the meeting, or is unwilling to act, the
Directors present shall elect one of their number to be Chairman of the meeting.
65. If no Director is willing to act as Chairman or if no Director is present
within fifteen minutes after the time appointed for holding the meeting, the
Members present shall choose one of their number to be Chairman of the meeting.
66. The Chairman may, with the consent of a meeting at which a quorum is
present, (and shall if so directed by the meeting), adjourn the meeting from
time to time and from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the meeting from
which the adjournment took place. When a general meeting is adjourned for thirty
days or more, notice of the adjourned meeting shall be given as in the case of
an original meeting; otherwise it shall not be necessary to give any such notice
of an adjournment or of the business to be transacted at an adjourned general
meeting. No business shall be transacted at any adjourned meeting other than the
business which might have been transacted at the meeting from which the
adjournment took place.
67. A resolution put to the vote of the meeting shall be decided on a show of
hands unless before or on the declaration of the result of, the show of hands,
the Chairman demands a poll, or any other Member or Members collectively present
in person or by proxy and holding at least ten per cent. in par value of the
Shares giving a right to attend and vote at the meeting demand a poll.
68. Unless a poll is duly demanded, a declaration by the Chairman that a
resolution has been carried, or carried unanimously, or by a particular
majority, or lost, or not carried by a particular majority, an entry to that
effect in the minutes of the proceedings of the meeting shall be conclusive
evidence of that fact without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
69. The demand for a poll may be withdrawn.
70. Unless a poll is duly demanded, on the election of a Chairman or on a
question of adjournment, a poll shall be taken as the Chairman directs and the
result of the poll shall be deemed to be the resolution of the general meeting
at which the poll was demanded.
71. In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman shall not be entitled to a second or casting vote.
72. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs, and
any business other than that upon which a poll has been demanded or is
contingent thereon may proceed pending the taking of the poll.
VOTES OF MEMBERS
73. Except as otherwise required by law or as set forth herein, the holder of
each Share issued and outstanding shall have one vote for each Share held by
such holder. No Member shall be entitled to engage in cumulative voting.
74. In the case of joint holders of record the vote of the senior who tenders
a vote, whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders, and for this purpose seniority shall be
determined by the order in which the names stand in the register of Members.
75. A Member of unsound mind, or in respect of whom an order has been made by
any court, having jurisdiction in lunacy, may vote, whether on a show of hands
or on a poll, by his committee, receiver, curator bonis, or other person in the
nature of a committee, receiver or curator bonis appointed by that court, and
any such committee, receiver, curator bonis or other persons may vote by proxy.
76. No Member shall be entitled to vote at any general meeting unless he is
registered as a Member of the Company on the record date for such meeting nor
unless all calls or other sums presently payable by him in respect of Shares in
the Company have been paid.
77. No objection shall be raised to the qualification of any voter except at
the general meeting or adjourned general meeting at which the vote objected to
is given or tendered and every vote not disallowed at such general meeting shall
be valid for all purposes. Any such objection made in due time shall be referred
to the Chairman of the general meeting whose decision shall be final and
conclusive.
78. On a poll or on a show of hands votes may be given either personally or by
proxy. A Member may appoint more than one proxy or the same proxy under one or
more instruments to attend and vote at a meeting and may appoint one proxy to
vote both in favour of and against the same resolution in such proportion as
specified in the instrument appointing the proxy. Where a Member appoints more
than one proxy the instrument of proxy shall state which proxy is entitled to
vote on a show of hands.
PROXIES
79. The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or of his attorney duly authorised in
writing, or, if the appointor is a corporation under the hand of an officer or
attorney duly authorised for that purpose. A proxy need not be a Member of the
Company.
80. The instrument appointing a proxy shall be deposited at the Registered
Office or at such other place as is specified for that purpose in the notice
convening the meeting, or in any instrument of proxy sent out by the Company:
(a) not less than 48 hours before the time for holding the meeting or
adjourned meeting at which the person named in the instrument proposes to vote;
or
(b) in the case of a poll taken more than 48 hours after it is demanded,
be deposited as aforesaid after the poll has been demanded and not less than 24
hours before the time appointed for the taking of the poll; and
(c) where the poll is not taken forthwith but is taken not more than 48
hours after it was demanded be delivered at the meeting at which the poll was
demanded to the Chairman or to the secretary or to any director;
provided that the Directors may in the notice convening the meeting, or in an
instrument of proxy sent out by the Company, direct that the instrument
appointing a proxy may be deposited (no later than the time for holding the
meeting or adjourned meeting) at the Registered Office or at such other place as
is specified for that purpose in the notice convening the meeting, or in any
instrument of proxy sent out by the Company. The Chairman may in any event at
his discretion direct that an instrument of proxy shall be deemed to have been
duly deposited. An instrument of proxy that is not deposited in the manner
permitted shall be invalid.
81. The instrument appointing a proxy may be in any usual or common form and
may be expressed to be for a particular meeting or any adjournment thereof or
generally until revoked. An instrument appointing a proxy shall be deemed to
include the power to demand or join or concur in demanding a poll.
82. Votes given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or insanity of the principal or
revocation of the proxy or of the authority under which the proxy was executed,
or the transfer of the Share in respect of which the proxy is given unless
notice in writing of such death, insanity, revocation or transfer was received
by the Company at the Registered Office before the commencement of the general
meeting, or adjourned meeting at which it is sought to use the proxy.
83. Any corporation or other non-natural person which is a Member may in
accordance with its constitutional documents, or in the absence of such
provision by resolution of its directors or other governing body, authorise such
person as it thinks fit to act as its representative at any meeting of the
Company or of any class of Members, and the person so authorised shall be
entitled to exercise the same powers on behalf of the corporation which he
represents as the corporation could exercise if it were an individual Member. A
person entitled to more than one vote on a poll need not use all his votes or
cast all the votes he uses in the same way.
84. Shares in the Company that are beneficially owned by the Company shall not
be voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding Shares at any given time.
CORPORATE REPRESENTATIVES
85. Any corporation which is a Member of the Company may, by resolution of its
directors or other governing body or by power of attorney, authorise such person
as it thinks fit to act as its representative at any meeting of the Company or
of members of any class of Shares of the Company and the person so authorised
shall be entitled to exercise the same powers on behalf of the corporation which
be represents as that corporation could exercise if it were an individual member
of the Company and where a corporation is so represented, it shall be treated as
being present at any meeting in person.
CLEARING HOUSES
86. If a clearing house (or its nominee) is a member of the Company it may, by
resolution of its directors or other governing body or by power of attorney,
authorise such person or persons as it
thinks fit to act as its representative or representatives at any general
meeting of the Company or at any general meeting of any class of members of the
Company provided that, if more than one person is so authorised, the
authorisation shall specify the number and class of Shares in respect of which
each such person is so authorised. A person so authorised pursuant to this
provision shall be entitled to exercise the same powers on behalf of the
clearing house (or its nominee) which he represents as that clearing house (or
its nominee) could exercise if it were an individual member of the Company
holding the number and class of Shares specified in such authorisation.
DIRECTORS
87. The number of Directors shall be five or such other number as shall be
fixed from time to time by the Directors; provided, however, that so long as
Shares or ADSs of the Company are quoted on Nasdaq, the Directors shall include
such number of Independent Directors as applicable law, rules or regulations or
the Nasdaq Rules require.
88. At each annual general meeting, all of the Directors for the time being
shall retire from office, retaining office until the close of such meeting, and
shall be eligible for re-election. If for any cause, the Directors shall not
have been elected at an annual general meeting, they may be elected as soon
thereafter as convenient at an extraordinary general meeting of the Members
called for that purpose in the manner provided in these Articles.
89. Notwithstanding the foregoing provisions of Article 88, each Director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of Directors
constituting the Board shall shorten the term of any incumbent Director.
90. Subject to Article 108, the remuneration to be paid to the Directors shall
be such remuneration as the Directors shall determine. Such remuneration shall
be deemed to accrue from day to day. The Directors shall also be entitled to be
paid their travelling, hotel and other expenses properly incurred by them in
going to, attending and returning from meetings of the Directors, or any
committee of the Directors, or general meetings of the Company, or otherwise in
connection with the business of the Company, or to receive a fixed allowance in
respect thereof as may be determined by the Directors from time to time, or a
combination partly of one such method and partly the other.
91. Subject to Article 108, the Directors may by resolution award special
remuneration to any Director of the Company undertaking any special work or
services for, or undertaking any special mission on behalf of, the Company other
than his ordinary routine work as a Director. Any fees paid to a Director who is
also counsel or solicitor to the Company, or otherwise serves it in a
professional capacity shall be in addition to his remuneration as a Director.
92. Payment to any Director or past Director of any sum by way of compensation
for loss of office or as consideration for or in connection with his retirement
from office (not being a payment to which the Director is contractually
entitled) must first be approved by the Company in general meeting.
93. A Director or alternate Director may hold any other office or place of
profit under the Company (other than the office of Auditor) in conjunction with
his office of Director for such period and on such terms as to remuneration and
otherwise as the Directors may determine.
94. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled to
remuneration for professional services as if he were not a Director or alternate
Director.
95. A shareholding qualification for Directors may not be fixed by the Company
in general meeting.
96. The Company shall keep at its Registered Office a register of Directors
and officers containing their names and addresses and occupations and other
particulars required by the Law and shall send to the Registrar of Companies of
the Cayman Islands a copy of such register and shall from time to time notify to
the Registrar of Companies of the Cayman Islands any change that takes place in
relation to such Directors and officers as required by applicable law, rules or
regulations or the Nasdaq Rules.
ALTERNATE DIRECTORS
97. A Director who expects to be unable to attend Directors' Meetings because
of absence, illness or otherwise may appoint any person to be an alternate
Director to act in his stead and such appointee whilst he holds office as an
alternate Director shall, in the event of absence therefrom of his appointor, be
entitled to attend meetings of the Directors and to vote thereat and to do, in
the place and stead of his appointor, any other act or thing which his appointor
is permitted or required to do by virtue of his being a Director as if the
alternate Director were the appointor, other than appointment of an alternate to
himself, and he shall ipso facto vacate office if and when his appointor ceases
to be a Director or removes the appointee from office. Any appointment or
removal under this Article shall be effected by notice in writing under the hand
of the Director making the same.
98. The appointment of an alternate Director shall determine on the happening
of any event which, were he a Director, would cause him to vacate such office or
if his appointor ceases to be a Director.
99. An alternate Director shall be entitled to receive and waive (in lieu of
his appointor) notices of meetings of the Directors and shall be entitled to
attend and vote as a Director and be counted in the quorum at any such meeting
at which the Director appointing him is not personally present and generally at
such meeting to perform all the functions of his appointor as a Director and for
the purposes of the proceedings at such meeting the provisions of these Articles
shall apply as if he (instead of his appointor) were a Director. If he shall be
himself a Director or shall attend any such meeting as an alternate for more
than one Director, his voting rights shall be cumulative and he need not use all
his votes or cast all the votes to uses in the same way. To such extent as the
Board may from time to time determine in relation to any committee of the Board,
the foregoing provisions of this Article shall also apply mutatis mutandis to
any meeting of any such committee
of which his appointor is a member. An alternate Director shall not, save as
aforesaid, have power to act as a Director nor shall he be deemed to be a
Director for the purposes of these Articles.
100. An alternate Director shall be entitled to contract and be interested in
and benefit from contracts, arrangements or transactions and to be repaid
expenses and to be indemnified to the same extent mutatis mutandis as if he were
a Director, but he shall not be entitled to receive from the Company in respect
of his appointment as alternate Director any remuneration except only such part
(if any) of the remuneration otherwise payable to his appointor as such
appointor may by notice in writing to the Company from time to time direct. The
alternate Director, as well as the Director appointing such alternate Director,
shall be responsible for the alternate Director's own acts and defaults.
101. In addition to the foregoing provisions of this Article, a Director may be
represented at any meeting of the Board (or of any committee of the Board) by a
proxy appointed by him, is which event the presence or vote of the proxy shall
for all purposes be deemed to be that of the Director. A proxy need not himself
be a Director and the provisions of Articles 79 to 84 shall apply mutatis
mutandis to the appointment of proxies by Directors save that an instrument
appointing a proxy shall not become invalid after the expiration of twelve
months from its date of execution but shall remain valid for such period as the
instrument shall provide or, if no such provision is made in the instrument,
until revoked in writing and save also that a Director may appoint any number of
proxies although only one such proxy may attend in his stead at meetings of the
Board).
POWERS AND DUTIES OF DIRECTORS
102. Subject to the provisions of the Law, the Memorandum and the Articles and
to any directions given by Special Resolution, the business of the Company shall
be managed by the Directors who may exercise all the powers of the Company. No
alteration of the Memorandum or Articles and no such direction shall invalidate
any prior act of the Directors which would have been valid if that alteration
had not been made or that direction had not been given. A duly convened meeting
of the Directors at which a quorum is present may exercise all powers
exercisable by the Directors.
103. The Directors may from time to time and at any time by power of attorney
or otherwise appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
authorised signatory of the Company for such purpose and with such powers,
authorities and discretions (not exceeding those vested in or exercisable by the
Directors under these Articles) and for such period and subject to such
conditions as they may think fit, and any such powers of attorney or other
appointment may contain such provisions for the protection and convenience of
persons dealing with any such attorneys or authorised signatories as the
Directors may think fit and may also authorise any such attorney or authorised
signatory to delegate all or any of the powers, authorities and discretions
vested in him.
104. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or
otherwise executed as the case may be in such manner as the Directors shall from
time to time by resolution determine.
105. The Directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented thereat
by an alternate or by proxy) present at each meeting of the Directors and of any
committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the Company
and of the Directors and of committees of Directors.
106. The Directors on behalf of the Company may pay a gratuity or pension or
allowance on retirement to any Director who has held any other salaried office
or place of profit with the Company or to his widow or dependants and may make
contributions to any fund and pay premiums for the purchase or provision of any
such gratuity, pension or allowance.
107. 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 outright or as security for any debt, liability or obligation of the
Company or of any third party.
MANAGEMENT
108. (a) The Directors may from time to time provide for the management of
the affairs of the Company in such manner as they shall think fit and the
provisions contained in the next following paragraphs shall be without prejudice
to the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of the
Company and may appoint any persons to be members of such committees or local
boards or any managers or agents and may fix their remuneration.
(c) The Directors from time to time and at any time may delegate to any
such committee, local board, manager or agent any of the powers, authorities and
discretions for the time being vested in the Directors and may authorise the
members for the time being of any such local board, or any of them to fill up
any vacancies therein and to act notwithstanding vacancies and any such
appointment or delegation may be made on such terms and subject to such
conditions as the Directors may think fit and the Directors may at any time
remove any person so appointed and may annul or vary any such delegation, but no
person dealing in good faith and without notice of any such annulment or
variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by the Directors
to subdelegate all or any of the powers, authorities, and discretions for the
time being vested in them.
(e) Without prejudice to the freedom of the Directors to establish any
other committees, for so long as the ADSs of the Company are listed or quoted on
Nasdaq, it shall establish and maintain an Audit Committee as a committee of the
board, the composition and responsibilities of which shall comply with
applicable law, rules or regulations and the Nasdaq Rules.
(f) The Board shall adopt a formal written audit committee charter and
review and assess the adequacy of the formal written charter on an annual basis.
The charter shall comply with applicable law, rules or regulations and the
Nasdaq Rules.
(g) Without prejudice to the freedom of the Directors to establish any
other committees, the Board may establish a Compensation Committee to assist the
board in reviewing and approving the compensation structure for the company's
directors and officers. For so long as the ADSs of the Company are listed or
quoted on Nasdaq, the composition and responsibilities of the Compensation
Committee shall comply with applicable law, rules or regulations and the Nasdaq
Rules.
(h) The Board shall adopt a formal written compensation committee
charter and review and assess the adequacy of the formal written charter on an
annual basis. The charter shall comply with applicable law, rules or regulations
and the Nasdaq Rules.
(i) Without prejudice to the freedom of the Directors to establish any
other committees, the Board may establish a Corporate Governance and Nomination
Committee to assist the board in identifying qualified individuals to become
board members and in determining the composition of the board and its
committees. For so long as the ADSs of the Company are listed or quoted on
Nasdaq, the composition and responsibilities of the Corporate Governance and
Nomination Committee shall comply with applicable law, rules or regulations and
the Nasdaq Rules.
(j) The Board shall adopt a formal written governance and nomination
committee charter and review and assess the adequacy of the formal written
charter on an annual basis. The charter shall comply with applicable law, rules
or regulations and the Nasdaq Rules.
INTERESTED DIRECTORS
109. (i) No Director or proposed Director shall be disqualified by his office
from contracting with the Company either as vendor, purchaser or otherwise, (ii)
nor shall any such contract or any contract or arrangement entered into by or on
behalf of the Company with any person, company or partnership of or in which any
Director shall be a member or otherwise interested be capable on that account of
being voidable or voided, (iii) nor shall any such contract or arrangement be
voidable or voided solely because the Director is present at or participates in
the meeting of the Directors or committee thereof which authorizes the contract
or arrangement, or solely because the Directors' votes are counted for such
purpose, and (iv) nor shall any Director so contracting or being any member or
so interested be liable to account to the Company for any profit so realised by
any such contract or arrangement by reason only of such Director holding that
office or the fiduciary relationship, thereby established, provided that in each
such case (a) such Director shall,
if his interest in such contract or arrangement is material, declare the nature
of his interest at the earliest meeting of the Board at which it is practicable
for him to do so, either specifically or by way of a general notice stating
that, by reason of the facts specified in the notice, he is to be regarded as
interested in any contracts of a specified description which may subsequently be
made by the Company and (b) if such contract or arrangement is a Related Party
Transaction, such Related Party Transaction has been approved in accordance with
applicable laws, rules, regulations and the Nasdaq Rules.
110. Any Director may continue to be or become a director, managing director,
joint managing director, deputy managing director, executive director, manager
or other officer or member of any other company in which the Company may be
interested and (unless otherwise agreed between the Company and the Director) no
such Director shall be liable to account to the Company or the members for any
remuneration or other benefits received by him as a director, managing director,
joint managing director, deputy managing director, executive director, manager
or other officer or member of any such other company. The Directors may exercise
the voting powers conferred by the shares in any other company held or owned by
the Company, or exercisable by them as directors of such other company in such
manner in all respects as they think fit (including the exercise thereof in
favour of any resolution appointing themselves or any of them directors,
managing directors, joint managing directors; deputy managing directors,
executive directors, managers or other officers of such company) and any
Director may vote in favour of the exercise of such voting rights in the manner
aforesaid notwithstanding that he may be, or is about to be, appointed a
director, managing director, joint managing director, deputy managing director,
executive director, manager or other officer of such a company, and that as such
he is or may become interested in the exercise of such voting rights in the
manner aforesaid.
111. A Director may hold any other office or place of profit with the Company
(except that of Auditor) in conjunction with his office of Director for such
period and upon such terms as the Board may determine, and may be paid such
extra remuneration therefor (whether by way of salary, commission, participation
in profit or otherwise) as the Board may determine, and such extra remuneration
shall be in addition to any remuneration provided for by or pursuant to any
other Article.
112. A general notice or disclosure to the Directors or otherwise contained in
the minutes of a Meeting or a written resolution of the Directors or any
committee thereof that a Director or alternate Director is a shareholder of any
specified firm or company and is to be regarded as interested in any transaction
with such firm or company shall be sufficient disclosure under Article 109 and
after such general notice it shall not be necessary to give special notice
relating to any particular transaction.
PROCEEDINGS OF DIRECTORS
113. Except as otherwise provided by these Articles, the Directors shall meet
together for the despatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising at any meeting
shall be decided by a majority of votes of the Directors and
alternate Directors present at a meeting at which there is a quorum, the vote of
an alternate Director not being counted if his appointor be present at such
meeting.
114. The Chairman of the Board or any two Directors may, and the Secretary on
the requisition of such persons, shall, at any time summon a meeting of the
Directors by notice to each Director and alternate Director by telephone,
facsimile, electronic email, telegraph or telex, during normal business hours,
at least twenty-four (24) hours before the date and time of the meeting, or by
sending notice in writing to each Director and alternate Director by first class
mail, charges prepaid, at least two (2) days before the date of the meeting,
which notice shall set forth the general nature of the business to be considered
unless notice is waived by all the Directors (or their alternates) either at,
before or after the meeting is held and provided further if notice is given in
person, by telephone, facsimile, electronic email, telegraph or telex the same
shall be deemed to have been given on the day it is delivered to the Directors
or transmitting organisation as the case may be. The accidental omission to give
notice of a meeting of the Directors to, or the non-receipt of notice of a
meeting by any person entitled to receive notice shall not invalidate the
proceedings of that meeting.
115. The quorum necessary for the transaction of the business of the Directors
shall be established if a majority of the Directors are present in person or by
proxy. A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of Directors, if any action taken is
approved by at least a majority of the required quorum for that meeting. For the
purposes of this Article an alternate Director or proxy appointed by a Director
shall be counted in a quorum at a meeting at which the Director appointing him
is not present.
116. The continuing Directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors, the continuing
Directors or Director may act for the purpose of increasing the number of
Directors to that number, or of summoning a general meeting of the Company, but
for no other purpose.
117. The Directors may elect a Chairman of their Board and determine the period
for which he is to hold office; but if no such Chairman is elected, or if at any
meeting the Chairman is not present within five minutes after the time appointed
for holding the same, the Directors present may choose one of their number to be
Chairman of the meeting.
118. All acts done by any meeting of the Directors or of a committee of
Directors (including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was some defect in
the appointment of any Director or alternate Director, or that they or any of
them were disqualified, be as valid as if every such person had been duly
appointed and qualified to be a Director or alternate Director as the case may
be.
119. Members of the Directors or of any committee thereof may participate in a
meeting of the Directors or of such committee by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other and participation in a meeting pursuant to
this provision shall constitute presence in person at such meeting. Unless
otherwise determined by the Directors the meeting shall be deemed to be held at
the place where the Chairman is at the start of the meeting. A resolution in
writing (in one or more
counterparts), signed by all the Directors for the time being or all the members
of a committee of the Directors (an alternate Director being entitled to sign
such resolution on behalf of his appointor) shall be as valid and effectual as
if it had been passed at a meeting of the Directors or committee as the case may
be duly convened and held.
120. A Director but not an alternate Director may be represented at any
meetings of the Directors by a proxy appointed in writing by him. The proxy
shall count towards the quorum and the vote of the proxy shall for all purposes
be deemed to be that of the appointing Director.
VACATION OF OFFICE OF DIRECTOR
121. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns the
office of Director; or
(b) if all of the Directors (other than the one to be removed) pass a
resolution or sign a notice effecting the removal of such one Director from his
office as such; or
(c) if he is prohibited from being a Director under any applicable law,
rules or regulations and the Nasdaq Rules; or
(d) if he absents himself (without being represented by proxy or an
alternate Director appointed by him) from three consecutive meetings of the
Board of Directors without special leave of absence from the Directors, and they
pass a resolution that he has by reason of such absence vacated office; or
(e) if he dies, becomes bankrupt or makes any arrangement or composition
with his creditors generally; or
(f) if he is found to be or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
122. The Company may by Ordinary Resolution appoint any person to be a Director
and may by Ordinary Resolution remove any Director and may by Ordinary
Resolution appoint another person in his stead.
123. The Directors shall have power at any time and from time to time to
appoint any person to be a Director, either to fill a casual vacancy or as an
addition to the existing Directors but so that the total amount of Directors
(exclusive of alternate Directors) shall not at any time exceed the number fixed
in accordance with these Articles. Any Director appointed in accordance with the
preceding sentence shall hold office only until the next following annual
general meeting of the Company and shall then be eligible for re-election at
that meeting.
124. Nothing in these Articles should be taken as depriving a Director removed
under any provisions of these Articles of compensation or damages payable to him
in respect of the termination of his appointment as Director or of any other
appointment or office as a result of the termination of his appointment as
Director or derived from any power to remove a Director which may exist apart
from the provisions of these Articles.
PRESUMPTION OF ASSENT
125. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
Minutes of the meeting or unless he shall file his written dissent from such
action with the person acting as the Chairman or Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered post to such
person immediately after the adjournment of the meeting. Such right to dissent
shall not apply to a Director who voted in favour of such action.
SEAL
126. (a) The Company may, if the Directors so determine, have a Seal. The
Seal shall only be used by the authority of the Directors or of a committee of
the Directors authorised by the Directors. Every instrument to which the Seal
has been affixed shall be signed by at least one person who shall be either a
Director or some officer or other person appointed by the Directors for the
purpose.
(b) The Company may have for use in any place or places outside the
Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of
the Common Seal of the Company and, if the Directors so determine, with the
addition on its face of the name of every place where it is to be used.
(c) A Director or officer, representative or attorney may without
further authority of the Directors affix the Seal over his signature alone to
any document of the Company required to be authenticated by him under Seal or to
be filed with the Registrar of Companies in the Cayman Islands or elsewhere
wheresoever.
OFFICERS
127. The officers of the Company shall be the Chairman of the Board, the Chief
Executive Officer, Chief Financial Officer and the Secretary and may include one
or more Vice Presidents and one or more Assistant Secretaries and one or more
Assistant Treasurers. Any two or more offices may be held by the same person.
128. All officers shall have such authority and perform such duties in the
management of the Company as may be provided in these Articles or, to the extent
not so provided, by resolution of the Board.
129. Each officer shall be appointed by the Board and shall hold office for
such term as may be determined by the Board. Each officer shall hold office
until his successor has been appointed and qualified or his earlier death or
resignation or removal in the manner hereinafter provided. The Board may require
any officer to give security for the faithful performance of his duties.
130. Any officer may resign at any time by giving written notice to the Board,
the Chairman, the Chief Executive Officer or the Secretary. Such resignation
shall take effect at the time specified in such notice or, if the time be not
specified, upon receipt thereof by the Board, the Chairman, the Chief Executive
Officer or the Secretary, as the case may be. Unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective.
131. All officers and agents appointed by the Board shall be subject to
removal, with or without cause, at any time by the Board or by the action of the
holders of record of a majority of the shares entitled to vote thereon.
132. Any vacancy occurring in any office of the Company, for any reason, shall
be filled by action of the Board. Unless earlier removed pursuant to Article 122
hereof, any officer appointed by the Board to fill any such vacancy shall serve
only until such time as the unexpired term of his predecessor expires unless
reappointed by the Board.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
133. Subject to the Law, the Directors may from time to time declare dividends
(including interim dividends) and distributions on Shares of the Company
outstanding and authorise payment of the same out of the funds of the Company
lawfully available therefor.
134. The Directors may, before declaring any dividends or distributions, set
aside such sums as they think proper as a reserve or reserves which shall at the
discretion of the Directors, be applicable for any purpose of the Company and
pending such application may, at the like discretion, be employed in the
business of the Company.
135. No dividend or distribution shall be payable except out of the profits of
the Company, realised or unrealised, or out of the Share Premium Account or as
otherwise permitted by the Law.
136. Subject to the rights of persons, if any, entitled to Shares with special
rights as to dividends or distributions, if dividends or distributions are to be
declared on a class of Shares they shall be declared and paid according to the
amounts paid or credited as paid on the Shares of such class outstanding on the
record date for such dividend or distribution as determined in accordance with
these Articles but no amount paid or credited as paid on a Share in advance of
calls shall be treated for the purpose of this Article as paid on the Share.
137. The Directors may deduct from any dividend or distribution payable to any
Member all sums of money (if any) presently payable by him to the Company on
account of calls or otherwise.
138. The Board may, with the sanction of the Members in general meeting, direct
that any dividend be satisfied wholly or in part by the distribution of specific
assets of any kind and in particular of paid up shares, debentures or warrants
to subscribe securities of any other company, or in any one or more of such
ways, and where any difficulty arises in regard to the distribution the Board
may settle the same as it thinks expedient, and in particular may disregard
fractional entitlements, round the same up or down or provide that the same
shall accrue to the benefit of the Company, and may fix the value for
distribution of such specific assets, or any part thereof, and may determine
that cash payments shall be made to any Members upon the footing of the value so
fixed in order to adjust the rights of all parties and may vest any such
specific assets in trustees as may seem expedient to the Board and may appoint
any person to sign any requisite instruments of transfer and other documents on
behalf of the persons entitled to the dividend and such appointment shall be
effective. Where required, a contract shall be filed in accordance with the
provisions of the Companies Law and the Board may appoint any person to sign
such contract on behalf of the persons entitled to the dividend and such
appointment shall be effective.
139. Unless otherwise directed by the Board, any dividend, interest or other
sum payable in cash to a holder of Shares may be paid by cheque or warrant sent
through the post to the registered address of the member entitled, or, in the
case of joint holders, to the registered address of the person whose name stands
first in the register in respect of the joint holding or to such person and to
such address as the holder or joint holders may in writing direct. Every cheque
or warrant so sent shall be made payable to the order of the holder or, in the
case of joint holders, to the order of the holder whose name stands first on the
register in respect of such shares and shall be sent at his or their risk, and
the payment of any such cheque or warrant by the bank on which it is drawn shall
operate as a good discharge to the Company in respect of the dividend and/or
bonus represented thereby, notwithstanding that it may subsequently appear that
the same has been stolen or than any endorsement thereon has been forged.
140. The Company may cease sending such cheques for dividend entitlements or
dividend warrants by post if such cheques or warrants have been left uncashed on
two consecutive occasions. However, the Company may exercise its power to cease
sending cheques for dividend entitlements or dividend warrants after the first
occasion on which such a cheque or warrant is returned undelivered.
141. All dividends or bonuses unclaimed for one year after having been declared
may be invested or otherwise made use of by the Board for the exclusive benefit
of the Company until claimed and the Company shall not be constituted a trustee
in respect thereof or be required to account for any money earned thereon. All
dividends or bonuses unclaimed for six years after having been declared may be
forfeited by the Board and shall revert to the Company and after such forfeiture
no member or other person shall have any right to or claim in respect of such
dividends or bonuses.
142. No dividend or distribution shall bear interest against the Company.
UNTRACEABLE SHAREHOLDERS
143. (a) The Company shall be entitled to sell any shares of a member or the
shares to which a person is entitled by virtue of transmission on death or
bankruptcy or operation of law if and provided that:
(i) all cheques or warrants, not being less than three in number,
for any sums payable in cash to the holder of such shares have remained uncashed
for a period of 12 years;
(ii) the Company has not during that time or before the expiry of
the three month period referred to in paragraph (iv) below received any
indication of the whereabouts or existence of the member or person entitled to
such shares by death, bankruptcy or operation of law;
(iii) during the 12-year period, at least three dividends in respect
of the shares in question have become payable and no dividend during that period
has been claimed by the member; and
(iv) upon expiry of the 12-year period, the Company has caused an
advertisement to be published in the newspapers or by electronic communication
in the manner in which notices may be served by the Company by electronic means
as herein provided, giving notice of its intention to sell such shares, and a
period of three months have elapsed since such advertisement.
The net proceeds of any such sale shall belong to the Company and
upon receipt by the Company of such net proceeds it shall become indebted to the
former member for an amount equal to such net proceeds.
(b) To give effect to any sale contemplated by paragraph (a) the Company
may appoint any person to execute as transferor an instrument of transfer of the
said shares and such other documents as are necessary to effect the transfer,
and such documents shall be as effective as if it had been executed by the
registered holder of or person entitled by transmission to such shares and the
title of the transferee shall not be affected by any irregularity or invalidity
in the proceedings relating thereto. The net proceeds of sale shall belong to
the Company which shall be obliged to account to the former member or other
person previously entitled as aforesaid for an amount equal to such proceeds and
shall enter the name of such former member or other person in the books of the
Company as a creditor for such amount. No trust shall be created in respect of
the debt, and no interest shall be payable in respect of the same and the
Company shall not be required to account for any money earned on the net
proceeds, which may be employed in the business of the Company or invested in
such investments (other than shares or other securities in or of the Company or
its holding company if any) or as the Board may from time to time think fit.
CAPITALISATION
144. Upon the recommendation of the Directors, the Company may by Ordinary
Resolution authorise the Directors to capitalise any sum standing to the credit
of any of the Company's reserve accounts (including Share Premium Account and
capital redemption reserve fund) or any sum standing to the credit of profit and
loss account or otherwise available for distribution and to appropriate such sum
to Members in the proportions in which such sum would have been divisible
amongst them had the same been a distribution of profits by way of dividend and
to apply such sum on their behalf in paying up in full unissued Shares for
allotment and distribution credited as fully paid up to and amongst them in the
proportion aforesaid. In such event the Directors shall do all acts and things
required to give effect to such capitalisation, with full power to the Directors
to make such provisions as they think fit for the case of Shares becoming
distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the Members
concerned). The Directors may authorise any person to enter on behalf of all of
the Members interested into an agreement with the Company providing for such
capitalisation and matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
145. The Directors shall cause proper books of account to be kept with respect
to:
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt or expenditure takes place;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such books of
account as are necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
146. The Directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the inspection
of Members not being Directors and no Member (not being a Director) shall have
any right of inspecting any account or book or document of the Company except as
conferred by Law or authorised by the Directors or by the Company in general
meeting.
147. The Directors may from time to time cause to be prepared and to be laid
before the Company in general meeting profit and loss accounts, balance sheets,
group accounts (if any) and such other reports and accounts as may be required
by law.
ANNUAL RETURNS AND FILINGS
148. The Board shall make the requisite annual returns and any other requisite
filings in accordance with the Law.
AUDIT
149. The Directors may appoint an Auditor of the Company who shall hold office
until removed from office by a resolution of the Directors and may fix his or
their remuneration. Notwithstanding the above, for so long as the ADSs of the
Company are listed or quoted on Nasdaq, the Audit Committee is directly
responsible for the appointment, remuneration, retension and oversight of the
Company's Auditors.
150. Every Auditor of the Company shall have a right of access at all times to
the books and accounts and vouchers of the Company and shall be entitled to
require from the Directors and Officers of the Company such information and
explanation as may be necessary for the performance of the duties of the
auditors.
151. Auditors shall, if so required by the Directors, make a report on the
accounts of the Company during their tenure of office at the next annual general
meeting following their appointment in the case of a company which is registered
with the Registrar of Companies as an ordinary company, and at the next
extraordinary general meeting following their appointment in the case of a
company which is registered with the Registrar of Companies as an exempted
company, and at any time during their term of office, upon request of the
Directors or any general meeting of the Members.
NOTICES
152. Notices shall be in writing and may be given by the Company to any Member
in accordance with applicable law, rules or regulations and the Nasdaq Rules.
153. In the event that no such law, rules and regulations referred to in the
above Article applies, notice to any Member shall be given either personally or
by sending it by post, cable, telex, fax or e-mail to him or to his address as
shown in the register of Members (or where the notice is given by e-mail by
sending it to the e-mail address provided by such Member). Any notice, if posted
from one country to another, is to be sent airmail.
154. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying and posting a letter
containing the notice, and shall be deemed to have been received on the fifth
day (not including Saturdays or Sundays or public holidays) following the day on
which the notice was posted.
155. (b) Where a notice is sent by cable, telex, or fax, service of the
notice shall be deemed to be effected by properly addressing, and sending such
notice and shall be deemed to have been received on the same day that it was
transmitted.
156. (c) Where a notice is given by e-mail service shall be deemed to be
effected by transmitting the e-mail to the e-mail address provided by the
intended recipient and shall be deemed to have been received on the same day
that it was sent, and it shall not be necessary for the receipt of the e-mail to
be acknowledged by the recipient.
157. A notice may be given by the Company to the person or persons which the
Company has been advised are entitled to a Share or Shares in consequence of the
death or bankruptcy of a Member in the same manner as other notices which are
required to be given under these Articles and shall be addressed to them by
name, or by the title of representatives of the deceased, or trustee of the
bankrupt, or by any like description at the address supplied for that purpose by
the persons claiming to be so entitled, or at the option of the Company by
giving the notice in any manner in which the same might have been given if the
death or bankruptcy had not occurred.
158. Notice of every general meeting shall be given in any manner hereinbefore
authorised to:
(a) every person shown as a Member in the register of Members on the
record date for such meeting except that in the case of joint holders the notice
shall be sufficient if given to the joint holder first named in the register of
Members;
(b) every person upon whom the ownership of a Share devolves by reason
of his being a legal personal representative or a trustee in bankruptcy of a
Member of record where the Member of record but for his death or bankruptcy
would be entitled to receive notice of the meeting;
(c) the Auditors;
(d) each Director and alternate Director; and
(e) Nasdaq.
No other person shall be entitled to receive notices of general meetings.
INFORMATION
159. No Member shall be entitled to require discovery of or any information in
respect of any detail of the Company's trading or any which is or may be in the
nature of a trade secret or secret process which may relate to the conduct of
the business of the Company and which in the opinion of the Board would not be
in the interests of the Members of the Company to communicate to the public.
160. The Board shall be entitled to release or disclose any information in its
possession, custody or control regarding the Company or its affairs to any of
its Members including, without limitation, information contained in the register
of Members and transfer books of the Company.
WINDING UP
161. Subject to Article 136, if the Company shall be wound up the liquidator
may, with the sanction of a Special Resolution of the Company and any other
sanction required by the Law, divide amongst the Members in 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 that purpose value any assets and determine
how the 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 Members as
the liquidator, with the like sanction, shall think fit, but so that no Member
shall be compelled to accept any asset upon which there is a liability.
162. If the Company shall be wound up, and the assets available for
distribution amongst the Members shall be insufficient to repay the whole of the
share capital, such assets shall be distributed so that, as nearly as may be,
the losses shall be borne by the Members in proportion to the par value of the
Shares held by them. If in a winding up the assets available for distribution
amongst the Members shall be more than sufficient to repay the whole of the
share capital at the commencement of the winding up, the surplus shall be
distributed amongst the Members in proportion to the par value of the Shares
held by them at the commencement of the winding up subject to a deduction from
those Shares in respect of which there are monies due, of all monies payable to
the Company for unpaid calls or otherwise. This Article is without prejudice to
the rights of the holders of Shares issued upon special terms and conditions.
INDEMNITY
163. (a) The Company may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that the person is or was a director, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another Company, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith, in a manner the person reasonably believed to be in, or not opposed to,
the best interests of the Company, in a manner that was not willfully or grossly
negligent, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith, in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
Company, in a manner that was willfully or grossly negligent, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) The Company may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another Company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith, in a manner
the person reasonably believed to be in or not opposed to the best interests of
the Company and in a manner that was not willfully or grossly negligent,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) To the extent that a present or former director or officer of the
Company has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Article 163(a) or (b) above, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any indemnification under Article 163(a) or (b) above (unless
ordered by a court) shall be made by the Company only as authorised in the
specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances, including
whether or not the person has met the applicable standard of conduct set forth
in Article 163(a) or (b) above. Such determination shall be made, with respect
to a person who is a director or officer at the time of such determination, (i)
by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion or (iv) by the Members of the
Company.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Company pursuant to this Article 163. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the Company deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 163 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any law, by-law, agreement, vote of Members or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) For purposes of this Article 163, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Company" shall include any service
as a director, officer, employee or agent of the Company which imposes duties
on, or involves service by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith, in a manner such person reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan and in a manner that was not willfully or grossly
negligent shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Article 163.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 163 shall, unless otherwise provided when
authorised or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
164. The Board may, notwithstanding any interest of the Directors in such
action, authorize the Company to purchase and maintain insurance on behalf of
any person described in the above Article, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to indemnify him
against such liability under the provisions of the above Article.
FINANCIAL YEAR
165. Unless the Directors otherwise prescribe, the financial year of the
Company shall end on 31st December in each year and shall begin on 1st January
in each year.
PENSION AND SHARE OPTION SCHEMES
166. The Board may establish and maintain or procure the establishment and
maintenance of any contributory or non-contributory pension or provident or
superannuation funds or (with the sanction of an ordinary resolution) employee
or executive share option schemes for the benefit of, or 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 of any company which is a subsidiary of the Company, or is allied or
associated with the Company or with any such subsidiary company, or who are or
were at any time directors or officers of the Company or of any such other
company as aforesaid, and holding or who have held any salaried employment or
office in the Company or such other company, and the wives, widows, families and
dependents of any such persons. The Board may also establish and subsidise or
subscribe to any institutions, associations, clubs or funds calculated to be for
the benefit of or to advance the interests and well-being of the Company or of
any such other company as aforesaid, and may make payments for or towards the
insurance of any such persons as aforesaid, and subscribe or guarantee money for
charitable or benevolent objects or for any exhibition or for any public,
general or useful object. The Board may do any of the matters aforesaid, either
alone or in conjunction with any such other company as aforesaid. Any 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.
167. For so long as the ADSs of the Company are quoted or listed on Nasdaq, a
sanction of an ordinary resolution by the shareholders shall be obtained prior
to any issuance of any equity or material amendment to any equity compensation
plan as required by applicable rules of the NASD Manual and Notices to Members,
as amended from time to time.
AMENDMENTS OF ARTICLES
168. Subject to the Law and to any quorum, voting or procedural requirements
expressly imposed by these Articles in regard to the variation of rights
attached to a specific class of Shares of the Company, the Company may at any
time and from time to time by Special Resolution change the name of the Company
or alter or amend these Articles or the Company's Memorandum of Association, in
whole or in part.
TRANSFER BY WAY OF CONTINUATION
169. If the Company is exempted as defined in the Law, it shall, subject to the
provisions of the Law and with the approval of a Special Resolution, have the
power to register by way of continuation as a body corporate under the laws of
any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman
Islands.