EXHIBIT 3.3
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESSS COMPANIES ACT
(CAP. 291)
MEMORANDUM AND ARTICLES
OF ASSOCIATION
OF
STATS HOLDINGS LIMITED
(FORMERLY SUCCESS ZONE HOLDINGS LIMITED)
INCORPORATED THE 3RD DAY OF DECEMBER, 2002
INCORPORATED IN THE BRITISH VIRGIN ISLANDS
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP. 291)
MEMORANDUM OF ASSOCIATION
OF
STATS HOLDINGS LIMITED
(FORMERLY SUCCESS ZONE HOLDINGS LIMITED)
NAME
1. The name of the Company is STATS Holdings Limited.
REGISTERED OFFICE
2. The registered office of the Company will be located at the offices of
Offshore Incorporations Limited, P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands.
REGISTERED AGENT
3. The registered agent of the Company will be Offshore Incorporations Limited
of P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British
Virgin Islands.
GENERAL OBJECTS AND POWERS
4. The Objects for which the Company is established are to engage in any act or
activity that is not prohibited under any law for the time being in force in the
British Virgin Islands including but not limited to:
(1) To purchase or otherwise acquire and undertake the whole or
any part of the business, goodwill, assets and liabilities of
any person, firm or company; to acquire an interest in,
amalgamate with or enter into partnership, joint venture or
profit-sharing arrangements with any person, firm or company;
to promote, sponsor, establish, constitute, form, participate
in, organise, manage, supervise and control any corporation,
company, syndicate, fund, trust, business or institution.
(2) To import, export, buy, sell (wholesale and retail), exchange,
barter, let on hire, distribute and otherwise deal in and turn
to account goods, materials, commodities, produce and
merchandise generally in their prepared, manufactured,
semi-manufactured, and raw state.
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(3) To purchase or otherwise acquire and hold, in any manner and
upon any terms, and to underwrite, invest and deal in shares,
stocks, debentures, debenture stock, annuities and foreign
exchange, foreign currency deposits and commodities and enter
into any interest rate exchange contracts, currency exchange
contracts, forward contracts, futures contracts, options and
other derivatives or financial instruments or products,
whether or not entered into or acquired for the purpose of
hedging against or minimising any loss concerning the assets
and business of the Company, and from time to time to vary any
of the same, and to exercise and enforce all rights and powers
incidental to the Company's interest therein, and to carry on
business as an investment trust, except a fund required to
register under the Mutual Funds Act 1996 (as amended), and to
invest or deal with the monies of the Company not immediately
required for its operations in such manners as the Company may
think fit.
(4) To enter into, carry on and participate in financial
transactions and operations of all kinds.
(5) To manufacture, construct, assemble, design, repair, refine,
develop, alter, convert, refit, prepare, treat, render
marketable, process and otherwise produce materials, fuels,
chemicals, substances and industrial, commercial and consumer
products of all kinds.
(6) To apply for, register, purchase or otherwise acquire and
protect, prolong, and renew, in any part of the world, any
intellectual and industrial property and technology of
whatsoever kind or nature and licences, protections and
concessions therefor, and to use, turn to account, develop,
manufacture, experiment upon, test, improve and licence the
same.
(7) To purchase or otherwise acquire and to hold, own, licence,
maintain, work, exploit, farm, cultivate, use, develop,
improve, sell, let, surrender, exchange, hire, convey or
otherwise deal in lands, mines, natural resources, and
mineral, timber and water rights, wheresoever situate, and any
interest, estate and rights in any real, personal or mixed
property and any franchises, rights, licences or privileges,
and to collect, manage, invest, reinvest, adjust, and in any
manner to dispose of the income, profits, and interest arising
therefrom.
(8) To improve, manage, develop, sell, let, exchange, invest,
reinvest, settle, grant licences, easements, options,
servitudes and other rights over, or otherwise deal with all
or any part of the Company's property, undertaking and assets
(present and future) including uncalled capital, and any of
the Company's rights, interests and privileges.
(9) To acquire, sell, own, lease, let out on hire, administer,
manage, control, operate, construct, repair, alter, equip,
furnish, fit out, decorate, improve and otherwise undertake
and deal in engineering and construction works, buildings,
projects, offices and structures of all kinds.
(10) To carry on business as consulting engineers in all field
including without limitation civil, mechanical, chemical,
structural, marine, mining, industrial,
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aeronautical, electronic and electrical engineering, and to
provide architectural, design and other consultancy services
of all kinds.
(11) To purchase or otherwise acquire, take in exchange, charter,
hire, build, construct, own, work, manage, operate and
otherwise deal with any ship, boat, barge or other waterborne
vessel, hovercraft, balloon, aircraft, helicopter or other
flying machine, coach, wagon, carriage (however powered) or
other vehicle, or any share or interest therein.
(12) To establish, maintain, and operate sea, air, inland waterway
and land transport enterprises (public and private) and all
ancillary services.
(13) To carry on the business of advisers, consultants,
researchers, analysts and brokers of whatsoever kind of nature
in all branches of trade, commerce, industry and finance.
(14) To provide or procure the provision of every and any service
or facility required by any person, firm or company.
(15) To provide agency, corporate, office and business services to
any person, firm or company, and to act as nominee or
custodian of any kind and to act as directors, accountants,
secretaries and registrars of companies incorporated by law or
societies or organizations whether incorporated or not and to
act as trustee under deeds of trust and settlement and as
executor of wills and to receive assets into custody on behalf
of clients and to manage, administer and invest such assets in
accordance with any deed of trust or settlement, will or other
instruments pursuant to which such assets are held.
(16) To carry on all or any of the businesses of shippers and ship
owners, ship and boat builders, charterers, shipping and
forwarding agents, ship managers, wharfingers, lightermen,
stevedores, packers, storers, fishermen and trawlers.
(17) To carry on all or any of the businesses of hoteliers and
restaurateurs and sponsors, managers and licencees of all
kinds of sporting, competitive, social and leisure activities
and of clubs, associations and social gatherings of all kinds
and purposes.
(18) To carry on business as auctioneers, appraisers, valuers,
surveyors, land and estate agents.
(19) To carry on business as farmers, graziers, dealers in and
breeders of livestock, horticulturists and market gardeners.
(20) To carry on all or any of the businesses of printers,
publishers, designers, draughtsmen, journalists, press and
literary agents, tourist and travel agents, advertisers,
advertising and marketing agents and contractors, personal and
promotional representatives, artists, sculptors, decorators,
illustrators, photographers, film makers, producers and
distributors, publicity agents and display specialists.
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(21) To establish and carry on institutions of education
instruction or research and to provide for the giving and
holding of lectures, scholarships, awards, exhibitions,
classes and meetings for the promotion and advancement of
education or the dissemination of knowledge generally.
(22) To carry on business as jewelers, goldsmith, silversmiths and
bullion dealers and to import, export, buy, sell and deal in
(wholesale and retail) jewellery, gold, silver and bullion,
gold and silver plate, articles of value, objects of art and
such other articles and goods as the company thinks fit, and
to establish factories for culturing, processing and
manufacturing goods for the above business.
(23) To design, invent, develop, modify, adapt, alter, improve and
apply any object, article, device, appliance, utensil or
product for any use or purpose whatsoever.
(24) To develop, acquire, store, licence, apply, assign, exploit
all and any forms of computer and other electronic software,
programs and applications and information, databases and
reference material and computer, digital and other electronic
recording, retrieval, processing and storage media of
whatsoever kind and nature.
(25) To engage in the provision or processing of communications and
telecommunications services, information retrieval and
delivery, electronic message, electronic commerce, internet
and database services.
(26) To enter into any commercial or other arrangements with any
government, authority, corporation, company or person and to
obtain or enter into any legislation, orders, charters,
contracts, decrees, rights, privileges, licences, franchises,
permits and concessions for any purpose and to carry out,
exercise and comply with the same and to make, execute, enter
into, commence, carry on, prosecute and defend all steps,
contracts, agreements, negotiations, legal and other
proceedings, compromises, arrangements and schemes and to do
all other acts, matters and things which shall at any time
appear conducive or expedient for the advantage or protection
of the Company.
(27) To take our insurance in respect of any and all insurable
risks which may affect the Company or any other company or
person and to effect insurance (and to pay the premiums
therefor) in respect of the life of any person and to effect
re-insurance and counter-insurance, but no business amounting
to fire, life or marine insurance business may be undertaken.
(28) To lend and advance money and grand and provide credit and
financial or other accommodation to any person, firm or
company.
(29) To borrow or raise money in such manner as the Company shall
think fit and in particular by the issue (whether at par or at
a premium or discount and for such consideration as the
Company may think fit) of bonds, debentures or debenture
stock, mortgages or charges, perpetual or otherwise, and if
the Company thinks fit charged upon all or any of the
Company's property (both present and future) and undertaking
including its uncalled capital and further, if so thought fit,
convertible
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any stock or shares of the Company or any other company, and
collaterally or further to secure any obligations of the
Company by a trust deed or other assurance.
(30) To guarantee or otherwise support or secure, either with or
without the Company receiving any consideration or advantage
and whether by personal covenant or by mortgaging or charging
all or part of the undertaking, property, assets and rights
(present and future) and uncalled capital of the Company or by
both such methods or by any other means whatsoever, the
liabilities and obligations of and the payment of any moneys
whatsoever (including but not limited to capital, principal,
premiums, interest, dividends, costs and expenses on any
stocks, shares or securities) by any person, firm or company
whatsoever including but not limited to any company which is
for the time being the holding company or a subsidiary of the
Company or of the Company's holding company or is otherwise
associated with the Company in its business, and to act as
agents for the collection, receipt or payment of money, and to
enter into any contract of indemnity or suretyship (but not in
respect of fire, life and marine insurance business).
(31) To draw, make, accept, endorse, negotiate, discount, execute,
issue, purchase or otherwise acquire, exchange, surrender,
convert, make advances upon, hold, charge, sell and otherwise
deal in bills of exchange, cheques, promissory notes, and
other negotiable instruments and bills of lading, warrants,
and other instruments relating to goods.
(32) To give any remuneration or other compensation or reward (in
cash or securities or in any other manner the Directors may
think fit) to any person for services rendered or to be
rendered in the conduct or course of the Company's business or
in placing or procuring subscriptions of or otherwise
assisting in the issue of any securities of the Company or any
other company formed or promoted by the Company or in which
the Company may be interested in or about the formation or
promotion of the Company or any other company as aforesaid.
(33) To grant or procure pensions, allowances, gratuities and other
payments and benefits of whatsoever nature to or for any
person and to make payments towards insurances or other
arrangements likely to benefit any person or advance the
interests of the Company or of its Members, and to subscribe,
guarantee or pay money for any purpose likely, directly or
indirectly, to further the interests of the Company or its
Members or for any national, charitable, benevolent,
educational, social, public, general or useful object.
(34) To pay all expenses preliminary or incidental to the formation
and promotion of the Company or any other company and the
conduct of the business of the Company or any other company.
(35) To procure the Company to be registered or recognised in any
territory.
(36) To cease carrying on and wind up any business or activity of
the Company, and to cancel any registration of and to wind up
and procure the dissolution of the Company in any territory.
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(37) To distribute any part of the undertaking, property and assets
of the Company among its creditors and Members in specie or in
kind but so that no distribution amounting to a reduction of
capital may be made without the sanction (if any) for the time
being required by law.
(38) To appoint agents, experts and attorneys to do any and all of
the above matters and things on behalf of the Company or any
thing or matter for which the Company acts as agent or is in
any other way whatsoever interested or concerned in any part
of the world.
(39) To do all and any of the above the matters or things in any
part of the world and either as principal, agent, contractor,
trustee, or otherwise and by or through trustees, agents or
otherwise and either alone or in conjunction with others, and
generally upon such terms and in such manner and for such
consideration and security (if any) as the Company shall think
fit including the issue and allotment of securities of the
Company in payment or part payment for any property acquired
by the Company or any services rendered to the Company or as
security for any obligation or amount (even if less than the
nominal amount of such securities) or for any other purpose.
(40) To carry on any other business or activity and do any act or
thing which in the opinion of the Company is or may be capable
of being conveniently carried on or done in connection with
any of the above, or likely directly or indirectly to enhance
the value of or render more profitable all or any part of the
Company's property or assets or otherwise to advance the
interests of the Company or its Members.
(41) To have all such powers as are permitted by law for the time
being in force in the British Virgin Islands, irrespective of
corporate benefit, to perform all acts and engage in all
activities necessary, conducive or incidental to the conduct,
promotion or attainment of the above objects of the Company or
any of them.
And it is hereby declared that the intention is that each of
the objects specified in each paragraph of this clause shall,
except where otherwise expressed in such paragraph, be an
independent main object and be in nowise limited or restricted
by reference to or inference form the terms of any other
paragraph or the name of the Company.
5. EXCLUSIONS
(i) The Company may not
(a) carry on business with persons resident in the
British Virgin Islands;
(b) own an interest in real property situate in the
British Virgin Islands, other than a lease referred
to in paragraph 5(ii)(e) of subclause 5(ii);
(c) carry on banking or trust business, unless it is
licenced to do so under the Banks and Trust Companies
Act, 1990;
(d) carry on business as an insurance or re-insurance
company, insurance
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agent or insurance broker, unless it is licenced
under an enactment authorizing it to carry on that
business;
(e) carry on business of company management, unless it is
licensed under the Company Management Act, 1990; or
(f) carry on the business of providing the registered
office or the registered agent for companies
incorporated in the British Virgin Islands.
(ii) For purposes of paragraph 5(i)(a) of subclause 5(i), the
Company shall not be treated as carrying on business with
person resident in the British Virgin Islands if
(a) it makes or maintains deposits with a person carrying
on banking business within the British Virgin
Islands;
(b) it makes or maintains professional contact with
solicitors, barristers, accountants, bookkeepers,
trust companies, administration companies, investment
advisers or other similar persons carrying on
business within the British Virgin Islands;
(c) it prepares or maintains books and records within the
British Virgin Islands;
(d) it holds, within the British Virgin Islands, meetings
of its directors or members;
(e) it holds a lease of property for use as an office
from which to communicate with members or where
books and records of the Company are prepared or
maintained;
(f) it holds shares, debt obligations or other securities
in a company incorporated under the International
Business Companies Act or under the Companies Act; or
(g) shares debt obligations or other securities in the
Company are owned by any person resident in the
British Virgin Islands or by any company incorporated
under the International Business Companies Act or
under the Companies Act.
LIMITATION OF LIABILITY
6. The liability of members of the Company is limited.
CURRENCY
7. Shares in the Company shall be issued in the currency of the United States of
America.
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AUTHORISED CAPITAL
8. The authorised capital of the Company is US$50,000.00.
CLASSES, NUMBER AND PAR VALUE OF SHARES
9. The authorised capital is made up of one class and one series of shares
divided into 50,000 shares of US$1.00 par value.
DESIGNATIONS, POWERS, PREFERENCES, ETC. OF SHARES
10. All shares shall
(a) have one vote each;
(b) be subject to redemption, purchase or acquisition by the Company for
fair value; and
(c) have the same rights with regard to dividends and distributions upon
liquidation of the Company.
VARIATION OF CLASS RIGHTS
11. If any time the authorised capital is divided into different classes or
series of shares, the rights attached to any class or series (unless otherwise
provided by the terms of issue of the shares of that class or series) may,
whether or not the Company is being wound up, be varied with the consent in
writing of the holders of not less than three-fourths of the issued shares of
that class or series and of the holders of not less than three-fourths of the
issued shares of any other class or series of shares which may be affected by
such variation.
RIGHTS NOT VARIED BY THE ISSUE OF SHARES PARI PASSU
12. 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.
REGISTERED SHARES
13. Shares in the Company may only be issued as registered shares and may not be
exchanged for shares issued to bearer.
TRANSFER OF SHARES
14. Subject to the provisions relating to the transfer of shares set forth in
the Articles of Association annexed hereto (the "Articles of Association"),
shares in the Company may be transferred subject to the prior or subsequent
approval of the Company as evidenced by a resolution of directors or by a
resolution of members.
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PRIVATE COMPANY
15. The Company is a private company, and accordingly:
(a) any invitation to the public to subscribe for any shares or debentures
of the Company is prohibited;
(b) the number of the members of the Company (not including persons who are
in the employment of the Company, and persons who, having been formerly
in the employment of the Company, were, while in such employment, and
have continued after the determination of such employment to be,
members of the Company) shall be limited to fifty PROVIDED that where
two or more persons hold one or more shares in the Company jointly they
shall, for the purposes of this Article, be treated as a single member;
(c) the right to transfer the shares of the Company shall be restricted in
manner herein prescribed; and
(d) the Company shall not have power to issue share warrants to bearer.
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION
16. The Company may amend its Memorandum of Association and Articles of
Association by a resolution of members or by a resolution of directors.
DEFINITIONS
17. The meanings of words in this Memorandum of Association are as defined in
the Articles of Association.
We, OFFSHORE INCORPORATIONS LIMITED, of P.O Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands for the purpose of
incorporating an International Business Company under the laws of the British
Virgin Islands hereby subscribe our name to this Memorandum of Association the
1st day of July, 2002.
SUBSCRIBER OFFSHORE INCORPORATIONS LIMITED
/s/ E.T. Powell
------------------------------------------
E.T. POWELL
Authorised Signatory
/s/ Fandy Tsoi
in the presence of : WITNESS ------------------------------------------
Fandy Tsoi
9th Floor, Ruttonjee House
11 Duddell Street, Central
Hong Kong
Occupation: Operations Manager
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP.291)
ARTICLES OF ASSOCIATION
OF
STATS HOLDINGS LIMITED
(FORMERLY SUCCESS ZONE HOLDINGS LIMITED)
PRELIMINARY
1. In these Articles, if not consistent with the subject or context, the
words and expressions standing in the first column of the following
table shall bear the meanings set opposite them respectively in the
second column thereof.
Words Meaning
- ----- -------
"capital" The sum of the aggregate par value of all outstanding shares
with par value of the Company and shares with par value held
by the Company as treasury shares plus
(a) the aggregate of the amounts designated as capital of
all outstanding shares without par value of the
Company and shares without par value held by the
Company as treasury shares, and
(b) the amounts as are from time to time transferred from
surplus to capital by a resolution of directors.
"member" A person who holds shares in the Company.
"person" An individual, a corporation, a trust, the estate of a
deceased individual, a partnership or an unincorporated
association of persons.
"resolution of directors"
(a) A resolution approved at a duly convened and
constituted meeting of directors of the Company or of
a committee of directors of the
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Company by the affirmative vote of a simple majority
of the directors present at the meeting who voted and
did not abstain; or
(b) a resolution consented to in writing by all directors
or of all members of the committee, as the case may
be;
except that where a director is given more than one vote, he
shall be counted by the number of votes he casts for the
purpose of establishing a majority.
"resolution of members"
(a) A resolution approved at a duly convened and
constituted meeting of the members of the Company by
the affirmative vote of
(i) a simple majority of the votes of the shares
entitled to vote thereon which were present
at the meeting and were voted and not
abstained, or
(ii) a simple majority of the votes of each class
or series of shares which were present at
the meeting and entitled to vote thereon as
a class or series and were voted and not
abstained and of a simple majority of the
votes of the remaining shares entitled to
vote thereon which were present at the
meeting and were voted and not abstained; or
(b) a resolution consented to in writing by
(i) an absolute majority of the votes of shares
entitled to votes thereon, or
(ii) an absolute majority of the votes of each
class or series of shares entitled to vote
thereon as a class or series and of an
absolute majority of the votes of the
remaining shares entitled to vote thereon.
"securities" Shares and debt obligations of every kind, and options,
warrants and rights to acquire shares, or debts obligations.
"surplus" The excess, if any, at the time of the determination of the
total assets of the Company over the aggregate of its total
liabilities, as shown in its books of account, plus the
Company's capital.
"the Act" The International Business Companies Act (Cap. 291) including
any modification, extension, re-enactment or renewal thereof
and any regulations made thereunder.
"the Memorandum" The Memorandum of Association of the Company as originally
framed or as from time to time amended.
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"the Seal" Any Seal which has been duly adopted as the Seal of the
Company.
"these Articles" The Articles of Association as originally framed or as from
time to time amended.
"treasury shares" Shares in the Company that were previously issued but
were repurchased, redeemed or otherwise acquired by the
Company and not cancelled.
2. "Written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented
or reproduced by any mode of reproducing words in a visible form,
including telex, facsimile, telegram, cable, electronic message or
other form of writing produced by electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall
bear the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and
not the number of members who actually voted and a reference to shares
being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be
issued according to the provisions of the Memorandum.
REGISTERED SHARES
7. Every member holding registered shares in the Company shall be entitled
to a certificate signed by a director or officer of the Company and
under the Seal specifying the share or shares held by him and the
signature of the director or officer and the Seal may be facsimiles.
8. Any member receiving a share certificate for registered shares shall
indemnify and hold the Company and its directors and officers harmless
from any loss or liability which it or they may incur by reason of any
wrongful or fraudulent use or representation made by any person by
virtue of the possession thereof. If a share certificate for registered
shares is worn out or lost it may be renewed on production of the worn
out certificate or on satisfactory proof of its loss together with such
indemnity as may be required by a resolution of directors.
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9. If several persons are registered as joint holders of any shares, any
one of such persons may give an effectual receipt for any dividend
payable in respect of such shares.
SHARES, AUTHORISED CAPITAL, CAPITAL AND SURPLUS
10. Subject to the provisions of these Articles and any resolution of
members the unissued shares of the Company shall be at the disposal of
the directors who may, without limiting or affecting any rights
previously conferred on the holders of any existing shares or class or
series of shares offer, allot, grant options over or otherwise dispose
of shares to such persons, at such times and upon such terms and
conditions as the Company may by resolution of directors determine.
11. No share in the Company may be issued until the consideration in
respect thereof is fully paid, and when issued the share is for all
purposes fully paid and non-assessable save that a share issued for a
promissory note or other written obligation for payment of a debt may
be issued subject to forfeiture in the manner prescribed in these
Articles.
12. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or
other binding obligation to contribute money or property or any
combination of the foregoing as shall be determined by a resolution of
directors.
13. Shares in the Company may be issue for such amount of consideration as
the director may from time to time by resolution of directors
determine, except that in the case of shares with par value, the amount
shall not be less than the par value, and in the absence of fraud the
decision of the directors as to the value of the consideration received
by the Company in respect of the issue is conclusive unless a question
of law is involved. The consideration in respect of the shares
constitutes capital to the extent of the par value and the excess
constitutes surplus.
14. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company,
shall be treated for all purposes as having been issued for money equal
to the consideration received or deemed to have been received by the
Company in respect of the other share, debt obligation or security.
15. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the
Company may by resolution of directors determine.
16. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualification, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
17. Upon the issue by the Company of a share without par value, if an
amount is stated in the Memorandum to be authorised capital represented
by such shares then each share shall be issued for no less than the
appropriate proportion of such
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amount which shall constitute capital, otherwise the consideration in
respect of the share constitutes capital to the extent designated by
the directors and the excess constitutes surplus, except that the
directors must designate as capital an amount of the consideration that
is at least equal to the amount that the share is entitled to as a
preference, if any, in the assets of the Company upon liquidation of
the Company.
18. The Company may purchase, redeem or otherwise acquire and hold its own
shares but only out of surplus or in exchange for newly issued shares
of equal value.
19. Subject to provisions to the contrary in
(a) the Memorandum or these Articles;
(b) the designations, powers, preferences, rights, qualifications,
limitations and restrictions with which the shares were
issued; or
(c) the subscription agreement for the issue of the shares,
the Company may not purchase, redeem or otherwise acquire its own shares without
the consent of members whose shares are to be purchase, redeemed or otherwise
acquired.
20. No purchase, redemption or other acquisition of shares shall be made
unless the directors determine that immediately after the purchase,
redemption or other acquisition Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business
and the realisable value of the assets of the Company will not be less
than the sum of its total liabilities, other than deferred taxes, as
shown in the books of account, and its capital and, in the absence of
fraud, the decision of the directors as to the realisable value of the
assets of the Company is conclusive, unless a question of law is
involved.
21. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired.
(a) pursuant to a right member to have his shares redeemed or to
have his shares exchanged for money or other property of the
Company;
(b) by virtue of a transfer of capital pursuant to Regulation 49;
(c) by virtue of the provisions of Section 83 of the Act; or
(d) pursuant to an order of the Court.
22. Shares that the Company purchases, redeems or otherwise acquires
pursuant to the preceding Regulation may be cancelled or held as
treasury shares except to the extent that such shares are in excess of
80 per cent of the issued shares of the Company in which case they
shall be cancelled but they shall be available for reissue.
15
23. Where shares in the Company are held by the Company as treasury shares
or are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 per cent of the votes in the
election of directors of the other company, such shares of the Company
are not entitled to vote or to have dividends paid thereon and shall
not be treated as outstanding for any purpose except for purposes of
determining the capital of the Company.
24. The Company may purchase, redeem or otherwise acquire its shares at a
price lower than the fair value if permitted by, and then only in
accordance with, the terms of
(a) the Memorandum or these Articles; or
(b) a written agreement for the subscription for the shares to be
purchased, redeemed or otherwise acquired.
25. The Company may by a resolution of directors include in the computation
of surplus for any purpose the unrealised appreciation of the assets of
the Company, and, in the absence of fraud, the decision of the
directors as to value of the assets is conclusive, unless a question of
law is involved.
MORTAGES AND CHARGES OF REGISTERED SHARES
26. Members may mortgage or charge their registered shares in the Company
and upon satisfactory evidence thereof the Company shall give effect to
the terms of any valid mortgage or charge except insofar as it may
conflict with any requirements herein contained for consent to the
transfer of shares.
27. In the case of the mortgage or charge of registered shares there may be
entered in the share register of the Company at the request of the
registered holder of such shares
(a) a statement that the shares are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the aforesaid particulars are entered in the
share register.
28. Where particulars of a mortgage or charge are registered, such
particulars shall be cancelled
(a) with the consent of the named mortgagee or chargee or anyone
authorised to act on his behalf; or
(b) upon evidence satisfactory to the directors of the discharge
of the liability secured by the mortgage or charge and the
issue of such indemnities as the directors shall consider
necessary or desirable.
29. Whilst particulars of a mortgage or charge are registered, no transfer
of any share comprised therein shall be effected without the written
consent of the named mortgagee or chargee or anyone authorised to act
on his behalf.
16
FORFEITURE
30. When shares issued for a promissory note or other written obligation
for payment of a debt have been issued subject to forfeiture, the
provisions set forth in the following four regulations shall apply.
31. Written notice specifying a date for payment to be made and the shares
in respect of which payment is to be made shall be served on the member
who defaults in making payment pursuant to a promissory note or other
written obligations to pay a debt.
32. The written notice specifying a date for payment shall
(a) name a further date not earlier than the expiration of
fourteen days from the date of service of the notice on or
before which payment required by the notice is to be made; and
(b) contain a statement that in the event of non-payment at or
before the time named in the notice the shares, or any of
them, in respect of which payment is not made will be liable
to be forfeited.
33. Where a written notice has been issued and the requirements have not
been complied with within the prescribed time, the directors may at any
time before tender of payment forfeit and cancel the shares to which
the notice relates.
34. The Company is under no obligation to refund any monies to the member
whose shares have been forfeited and cancelled pursuant to these
provisions. Upon forfeiture and cancellation of the shares the member
is discharged from any further obligation to the Company with respect
to the shares forfeited and cancelled.
LIEN
35. The Company shall have a first and paramount lien on every shares
issued for a promissory note or for any other binding obligation to
contribute money or property or any combination thereof to the Company,
and the Company shall also have a first and paramount lien on every
share standing registered in the name of a member, whether singly or
jointly with any other person or persons, for all the debts and
liabilities of such member or his estate to the Company, whether the
same shall have been incurred before or after notice to the Company of
any interest of any person other than such member, and whether the time
for the payment or discharge of the same shall have actually arrived or
not, notwithstanding that the same are joint debts or liabilities of
such member or his estate and any other person, whether a member of the
Company or not. The Company's lien on a share shall extend to all
dividends payable thereon. The directors may at any time either
generally, or in any particular case, waive any lien that has arisen or
declare any share to be wholly or in part exempt form the provisions of
this Regulations.
17
36. In the absence of express provisions regarding sale in the promissory
note or other binding obligation to contribute money or property, the
Company may sell, in such manner as the directors may by resolution of
directors determine, any share on which the Company has a lien, but no
sale shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of 21 days after a notice
in writing, stating and demanding payment of the sum presently payable
and giving notice of the intention to sell in default of such payment,
has been served on the holder for the time being of the share.
37. The net proceeds of the sale by the Company of any shares on which it
has a lien shall be applied in or towards payment of discharge of the
promissory note or other binding obligation to contribute money or
property or any combination thereof in respect of which the lien exists
so far as the same is presently payable and any residue shall (subject
to a like lien for debts or liabilities not presently payable as
existed upon the share prior to the sale) be paid to the holder of the
share immediately before such sale. For giving effect to any such sale
to the directors may authorise some person to transfer the share sold
to the purchaser thereof. The purchaser shall be registered as the
holder of the share and he shall not be bound to see to the application
of the purchase money, not shall his title to the share be affected by
any irregularity or invalidity in the proceedings in reference to the
sale.
TRANSFER OF SHARES
38. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed
by the transferor and containing the name and address of the
transferee, but in the absence of such written instrument of transfer
the directors may accept such evidence of as a transfer of shares as
they consider appropriate.
39. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
40. Subject to any limitations in the Memorandum, the Company must on the
application of the transferor or transferee of a registered share in
the company enter in the share register the name of the transferee of
the share save that the registration of transfers may be suspended and
the share register closed at such times and for such periods as the
Company may from time to time by resolution of directors determine
provided always that such registration shall not be suspended and the
share register closed for more than 60 days in any period of twelve
months.
TRANSMISSION OF SHARES
41. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the
only person recoginised by the Company as having any title to his share
but they shall not be entitled to exercise any rights as a member of
the Company until they have proceeded as set forth in the next
following three regulations.
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42. The production to the Company of any document which is evidence of
probate of the will, or letters of administration of the estate, or
confirmation as executor, of a deceased member or of the appointment of
a guardian of an incompetent member of the trustee of a bankrupt member
shall be accepted by the Company even if the deceased, incompetent or
bankrupt member is domiciled outside the British Virgin Islands if the
document evidencing the grant of probate or letters of administration,
confirmation as executor, appointment as guardian or trustee in
bankruptcy is issued by a foreign court which had competent
jurisdiction in the matter. For the purpose of establishing whether or
not a foreign court had competent jurisdiction in such a matter the
directors may obtain appropriate legal advice. The directors may also
require an indemnity to be given by the executor, administrator,
guardian or trustee in bankruptcy.
43. Any person becoming entitled by operation of law or otherwise to a
share or shares in consequence of the death, incompetence or bankruptcy
of any member may be registered as a member upon such evidence being
produced as may reasonably be required by the directors. An application
by any such person to be registered as a member shall for all purpose
be deemed to be a transfer of shares of the deceased, incompetent or
bankrupt member and the directors shall treat it as such.
44. Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of
being registered himself, request in writing that some person to be
named by him be registered as the transferee of such share or shares
and such request shall likewise be treated as if it were a transfer.
45. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and
the circumstances of the case.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
46. The Company may by a resolution of directors amend the Memorandum to
increase or reduce its authorised capital and in connection therewith
the Company may in respect of any unissued shares increase or reduce
the number of such shares, increase or reduce the par value of any such
shares or effect any combination of the foregoing.
47. The Company may amend the Memorandum to
(a) divide the shares, including issued shares, of a class or
series into a larger number of shares of the same class or
series; or
(b) combine the shares, including issued shares, of a class or
series into a smaller number of shares of the same class or
series,
provided , however, that where shares are divided or combined under (a)
or (b) of this Regulation, the aggregate par value of the new shares
must be equal to the aggregate par value of the original shares.
19
48. The capital of the Company may by a resolution of directors be
increased by transferring an amount of the surplus of the Company to
capital.
49. Subject to the provisions of the two next succeeding Regulations, the
capital of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the Company to surplus.
50. No reduction of capital shall be effected that reduces the capital of
the Company to an amount that immediately after the reduction is less
than the aggregate par value of all outstanding shares with par value
and all shares with par value held by the Company as treasury shares
and the aggregate of the amounts designated as capital of all
outstanding shares without par value and all shares without par value
held by the Company as treasury shares that are entitled to a
preference, if any, in the assets of the Company upon liquidation of
the Company.
51. No reduction of capital shall be effected unless the directors
determine that immediately after the reduction the Company will be able
to satisfy its liabilities as they become due in the ordinary course of
its business and that the realisable assets of the Company will not be
less than its total liabilities, other than deferred taxes, as shown in
the books of the Company and its remaining capital, and, in the absence
of fraud, the decision of the directors as to the realisable value of
the assets of the Company is conclusive, unless a question of law is
involved.
MEETINGS AND CONSENTS OF MEMBERS
52. The directors of the Company may convene meetings of the members of the
Company at such times and in such manner and places within or outside
the British Virgin Islands as the directors consider necessary or
desirable.
53. Upon the written request of members holding ten per cent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
54. The directors shall give not less than seven days notice of meetings of
members to those persons whose names on the date the notice is given
appear as members in the share register of the Company and are entitled
to vote at the meeting.
55. The directors may fix the date notice is given of a meeting of members
as the record date for determining those shares that are entitled to
vote at the meeting.
56. A meeting of members may be called on short notice:
(a) if members holding not less than 90 per cent of the total
number of shares entitled to vote on all matters to be
considered at the meeting, or 90 per cent of the votes of each
class or a series of shares where members are entitled to vote
thereon as a class or series together with not less than a 90
per cent majority of the remaining votes, have agreed to short
notice of the meeting, or
20
(b) if all members holding shares entitled to vote on all or any
matters to be considered at the meeting have waived notice of
the meeting and for this purpose presence at the meeting shall
be deemed to constitute waiver.
57. The inadvertent failure of the directors to give notice of a meeting to
a member, or the fact that a member has not received notice, does not
invalidate the meeting.
58. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
59. The instrument appointing a proxy shall be produced at the place
appointed for the meeting before the time for holding the meeting at
which the person named in such instrument proposes to vote.
60. An instrument appointing a proxy shall be in substantially the
following form or such other form as the Chairman of the meeting shall
accept as properly evidencing the wishes of the member appointing the
proxy.
(Name of Company)
I/We __________________ being a member of the above Company with ___________
shares HEREBY APPOINT _________________ of _______________ or failing him
________________ of ___________________ to be my/our proxy to vote for me/us at
the meeting of members to be held on the ______ day of ____________________ and
at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this ____________ day of ___________________
- ------------------------------
Member
61. The following shall apply in respect of joint ownership of shares:
(a) if two or more persons hold shares jointly each of them may be
present in person or by proxy at a meeting of members and may
speak as a member;
(b) if only one of the joint owners is present in person or by
proxy he may vote on behalf of all joint owners; and
(c) if two or more of the joint owners are present in person or by
proxy they must vote as one.
62. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
21
63. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50 per
cent of the votes of the shares or class or series of shares entitled
to vote on resolutions of members to be considered at the meeting. If a
quorum be present, notwithstanding the fact that such quorum may be
represented by only one person then such person may resolve any matter
and a certificate signed by such person accompanied where such person
be a proxy be a copy of the proxy form shall constitute a valid
resolution of members.
64. If within two hours from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of members,
shall be dissolved; in any other case it shall stand adjourned to the
next business day at the same time and place or to such other time and
place as the directors may determine, and if at the adjourned meeting
there are present within one hour from the time appointed for the
meeting in person or by proxy not less than one third of the votes of
the shares or each class or series of shares entitled to vote on the
resolutions to be considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be dissolved.
65. At every meeting of members, the Chairman of the Board of Directors
shall preside as Chairman of the meeting. If there is no Chairman of
the Board of Directors or if the Chairman of the Board of the Directors
is not present at the meeting, the members present shall choose someone
of their number to be the Chairman. If the members are unable to choose
a Chairman for any reason, then the person representing the greatest
number of the voting shares present in person or by prescribed form of
proxy at the meeting shall preside as Chairman failing which the oldest
individual member or representative of a member of present shall take
the chair.
66. The Chairman may, with the consent of the meeting, adjourn any meeting
from time to time, and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place.
67. At any meeting of the members the Chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall
be announced to the meeting and recorded in the minutes thereof. If the
Chairman shall have any doubt as to the outcome of any resolution put
to the vote, he shall cause a poll to be taken of all votes cast upon
such resolution, but if the Chairman shall fail to take a poll then any
member present in person or by proxy who disputes the announcement by
the Chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the Chairman shall
thereupon cause a poll to be taken. If a poll is taken at any meeting
the result thereof shall be duly recorded in the minutes of that
meeting by the Chairman.
68. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of
22
representatives of such persons the right of any individual to speak
for or represent such member shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the directors
may in good faith seek legal advice from any qualified person and
unless and until a court of competent jurisdiction shall otherwise
rule, the directors may rely and act upon such advice without incurring
any liability to any member.
69. Any person other than an individual which is a member of the Company
may be resolution of its directors or other governing body authorise
such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of members of the Company, and
the person so authorised shall be entitled to exercise the same power
on behalf of the person which he represents as that person could
exercise if it were an individual member of the Company.
70. The Chairman of any meeting at which a vote is cast by proxy or on
behalf of any person other than an individual may call for a notarially
certified copy of such proxy or authority which shall be produced
within seven days of being so requested or the votes cast by such proxy
or on behalf of such person shall be disregarded.
71. Directors of the Company may attend and speak at any meeting of members
of the Company and at any separate meeting of the holders of any class
or series of shares in the Company.
72. An action that may be taken by the members at a meeting may also be
taken by a resolution of members consented to in writing or by telex,
telegram, cable, facsimile or other written electronic communication,
without the need for any notice, but if any resolution of members is
adopted otherwise than by the unanimous written consent of all members,
a copy of such resolution shall forthwith be sent to all members not
consenting to such resolutions. The consent may be in the form of
counterparts, each counterpart being signed by one or more members.
DIRECTORS
73. The first directors of the Company shall be appointed by the
subscribers to the Memorandum. Thereafter, the directors shall be
elected by the members for such term as the members may determine.
74. The minimum number of directors shall be one and the maximum number
shall be twelve.
75. Each director shall hold office for the term, if any, fixed by
resolution of members or until his earlier death, resignation or
removal.
76. A director may be removed from the office, with or without cause, by a
resolution of members or, with cause, by a resolution of directors.
23
77. A director may resign his office by giving written notice of his
resignation to the Company and the resignation shall have effect from
the date the notice is received by the Company or from such later date
as may be specified in the notice.
78. The directors may at any time appoint any person to be a director
either to fill a vacancy or as an addition to the existing directors. A
vacancy occurs through the death, resignation or removal of a director
but a vacancy or vacancies shall not be deemed to exist where one or
more directors shall resign after having appointed his or their
successor or successors.
79. The Company may determine by resolution of directors to keep a register
of directors containing:
(a) the names and addresses of the person who are directors of the
Company;
(b) the date on which each person whose name is entered in the
register was appointed as a director of the Company; and
(c) the date on which each person named as a director ceased to be
a director of the Company
80. If the directors determine to maintain a register of directors, a copy
thereof shall be kept at the registered office of the Company and the
Company may determine by resolution of directors to register a copy of
the register with the Registrar of Companies.
81. With the prior or the subsequent approval by a resolution of members,
the directors may, by a resolution of directors fix the emoluments of
directors with respect to services to be rendered in any capacity to
the Company.
82. A director shall not require a share qualification, and may be an
individual or a company.
POWERS OF THE DIRECTORS
83. The business and affairs of the Company shall be managed by the
directors who may pay all expenses incurred preliminary to and in
connection with the formation and registration of the Company and may
exercise all such powers of the Company as are not by the Act or by the
Memorandum or these Articles required to be exercised by the members of
the Company, subject to any delegation of such power as may be
authorised by these Articles and to such requirements as may be
prescribed by a resolution of members; but no requirement made by a
resolution of members shall prevail if it be inconsistent with these
Articles nor shall such requirement invalidate any prior act of the
directors which would have been valid if such requirement had not been
made.
84. The directors may, by resolution of directors, appoint any person,
including a person who is a director, to be an officer or agent of the
Company. The resolution of directors appointing an agent may authorise
the agent to appoint one or more
24
substitutes or delegates to exercise some or all of the powers
conferred on the agent by the Company.
85. Every officer or agent of the Company has such powers officer or agent
of the directors, including the power and authority to affix the Seal,
as are set forth in these Articles or in the resolution of directors
appointing the officer or agent, except that no officer or agent has
any power or authority with respect to the matters requiring a
resolution of directors under the Act.
86. Any director which is a body corporate may appoint any person its duly
authorised representative for the purpose of representing it at
meetings of the Board of Directors or with respect to unanimous written
consents.
87. The continuing directors may act notwithstanding any vacancy in their
body, save that if their number is reduced to their knowledge below the
number fixed by or pursuant to these Articles as the necessary quorum
for a meeting of directors, the continuing directors or director may
act only for the purpose of appointing directors to fill any vacancy
that has arisen or summoning a meeting of members.
88. The directors may by resolution of directors exercise all the powers of
the Company to borrow money and to mortgage or charge its undertakings
and property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for any
debt, liability or obligation of the Company or of any third party.
89. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as
the case may be , in such manner as shall from time to time be
determined by resolution of directors.
90. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other
encumbrances in which there shall be entered the following particulars
regarding each mortgage, charge and other encumbrances:
(a) the sum secured;
(b) the assets secured;
(c) the name and address of the mortgagee, chargee or other
encumbrancer;
(d) the date of creation of the mortgage, charge or other
encumbrance; and
(e) the date on which the particulars specified above in respect
of the mortgage, charge or other encumbrance are entered in
the register.
91. The Company may further determine by a resolution of directors to
register a copy of the register of mortgages, charges or other
encumbrances with the Registrar of Companies.
25
PROCEEDINGS OF DIRECTORS
92. The directors of the Company or any committee thereof may meet at such
times and in such manner and places within or outside the British
Virgin Islands as the directors may determine to be necessary or
desirable.
93. A director shall be deemed to be present at a meeting of directors if
he participates by telephone or other electronic means and all
directors participating in the meeting are able to hear each other.
94. A director shall be given not less than three days notice of meetings
of directors, but a meeting of directors held without three days notice
having been given to all directors shall be valid if all the directors
entitled to vote at the meeting who do not attend, waive notice of the
meeting and for this purpose, the presence of a director at a meeting
shall constitute waiver on his part. The inadvertent failure to give
notice of a meeting to a director, or the fact that a director has not
received the notice, does not invalidate the meeting.
95. A director may by a written instrument appoint an alternate who need
not be a director and an alternate is entitled to attend meetings in
the absence of the director who appointed him and to vote or consent in
place of the director.
96. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate
not less than one half of the total number of directors, unless there
are only two directors in which case the quorum shall be two.
97. If the Company shall have only one director the provisions herein
contained for meetings of the directors shall not apply but such sole
director shall have full power to represent and act for the Company in
all matters as are not by the Act or the Memorandum or these Articles
required to be exercised by the members of the Company and in lieu of
minutes of a meeting shall record in writing and sign a note or
memorandum of all matters requiring a resolution of directors. Such a
note or memorandum shall constitute sufficient evidence of such
resolution for all purposes.
98. At every meeting at the directors the Chairman of the Board of
Directors shall preside as Chairman of the meeting. If there is no
Chairman of the Board of Directors or if the Chairman of the Board of
Directors is not present at the meeting the Vice Chairman of the Board
of Directors shall preside. If there is no Vice Chairman of the Board
of Directors or if the Vice Chairman of the Board of Directors is not
present at the meeting the directors present shall choose someone of
their number to be Chairman of the meeting.
99. An action that may be taken by the directors or a committee of
directors at a meeting may also be taken by a resolution of directors
or a committee of directors consented to in writing or by telex,
telegram, cable, facsimile or other written electronic communication by
all directors or all members of the committee as the case may be,
without the need for any notice. The consent may be in the form of
counterparts, each counterpart being signed by one or more directors.
26
100. The directors shall cause the following corporate records to be kept:
(a) minutes of all meetings of directors, members, committee of
directors, committees of officers and committees of members;
(b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees
of members; and
(c) such other accounts and records as the directors consider
necessary or desirable in order to reflect the financial
position of the Company.
101. The books, records and minutes shall be kept at the registered office
of the Company, its principal place of business or at such other place
as the directors determine.
102. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
103. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are
set forth in the resolution of directors establishing the committee,
except that no committee has any power or authority to amend the
Memorandum or these Articles, to appoint directors or fix their
emoluments, or to appoint officers or agents of the Company.
104. The meetings and proceedings of each committee of directors consisting
of two or more directors shall be governed mutatis mutandis by the
provisions of these Articles regulating the proceedings of directors so
far as the same are not superseded by any provisions in the resolution
establishing the committee.
OFFICERS
105. The Company may be resolution of directors appoint officers of the
Company at such times as shall be considered necessary or expedient.
Such officers may consist of a Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, a President and one or more
Vice Presidents, Secretaries and Treasurers and such other officers as
may from time to time be deemed desirable. Any number of offices may be
held by the same person.
106. The officers shall perform such duties as shall be prescribed at the
time of their appointment subject to any modification in such duties as
may be prescribed thereafter by resolution of directors or resolution
of members, but in the absence of any specific allocation of duties it
shall be the responsibility of the Chairman of the Board of Directors
to preside at meetings of directors and members, the Vice Chairman to
act in the absence of the Chairman, the President to manage the day to
day affairs of the Company, the Vice Presidents to act in order of
seniority in the absence of the President but otherwise to perform such
duties as may be delegated to them by the President, the Secretaries to
maintain the share register, minute books and records (other than
financial records) of the Company and to ensure compliance with all
procedural requirements imposed
27
on the Company by applicable law, and the Treasury to be responsible
for the financial affairs of the Company.
107. The emoluments of all officers shall be fixed by resolution of
directors.
108. The officers of the Company shall hold office until their successors
are duly elected and qualified, but any officer elected or appointed by
the directors may be removed at any time, with or without cause, by
resolution of directors. Any vacancy occurring in any office of the
Company may be filled by resolution of directors.
CONFLICT OF INTERESTS
109. No agreement or transaction between the Company and one or more of its
directors or any person in which any director has a financial interest
or to whom any director is related, including as a director of that
other person, is void or voidable for this reason only or by reason
only that the director is present at the meeting of directors or at a
meeting of the committee of directors that approves the agreement or
transaction or that the vote or consent of the director is counted for
that purpose if the material facts of the interest of each director in
the agreement or transaction and his interest in or relationship to any
party to the agreement or transaction are disclosed in good faith or
are known by the other directors.
110. A director who has an interest in any particular business to be
considered at a meeting of directors or members may be counted for
purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
111. Subject to the limitations hereinafter provided the Company may
indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred
in connection with legal, administrative or investigate proceedings any
person who
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigate, by reason of the fact
that the person is or was a director, an officer or a
liquidator of the Company; or
(b) is or was, at the request of the Company, serving as a
director, officer or liquidator of, or in any other capacity
is or was acting for, another company or a partnership, joint
venture, trust or other enterprise.
112. The Company may only indemnify a person if the person acted honestly
and in good faith with a view to the best interests of the Company and,
in the case of criminal proceedings, the person had no reasonable cause
to believe that his conduct was unlawful.
113. The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the Company
and as to
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whether the person had no reasonable cause to believe that his conduct
was unlawful, is in the absence of fraud, sufficient for the purposes
of these Articles, unless a question of law is involved.
114. The termination of any proceedings by any judgement, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself,
create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the Company or that the
person had reasonable cause to believe that his conduct was unlawful.
115. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amount paid in settlement and reasonably incurred by the
person in connection with the proceedings.
116. The Company may purchase and maintain insurance in relation to any
person who is or was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture, trust
or other enterprise, against any liability asserted against the person
and incurred by the person in that capacity, whether or not the Company
has or would have had the power to indemnify the person against the
liability as provided in these Articles.
SEAL
117. The Company may have more than one Seal and references herein to the
Seal shall be references to every Seal which shall have been duly
adopted by resolution of directors. The directors shall provide for the
safe custody of the Seal and for an imprint thereof to be kept at the
Registered Office. Except as otherwise expressly provided herein the
Seal when affixed to any written instrument shall be witnessed and
attested to by the signature of a director or any other person so
authorised from time to time by resolution of directors. Such
authorisation may be before or after the seal is affixed may be general
or specific and may refer to any number of sealings. The Directors may
provide for a facsimile of the Seal and of the signature of any
director or authorised person which may be reproduced by printing or
other means on any instrument and it shall have the same force and
validity as if the Seal had been affixed to such instrument and the
same had been signed as hereinbefore described.
DIVIDENDS
118. The Company may by a resolution of directors declare and pay dividends
in money, shares, or other property but dividends shall only be
declared and paid out of surplus. In the event that dividends are paid
in specie the directors shall have responsibility for establishing and
recording in the resolution of directors authorising the dividends, a
fair and proper value for the assets to be so distributed.
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119. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of
the Company.
120. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund,
and may invest the sum so set apart as a reserve fund upon such
securities as they may select.
121. No dividend shall be declared and paid unless the directors determine
that immediately after the payment of the dividend the Company will be
able to satisfy its liabilities as they become due in the ordinary
course of its business and the realisable value of the assets of the
Company will not be less than the sum of its total liabilities, other
than deferred taxes, as shown in its books of account, and its capital.
In the absence of fraud, the decision of the directors as to the
realisable value of the assets of the Company is conclusive, unless a
question of law is involved.
122. Notice of any dividend that may have been declared shall be given to
each member in manner hereinafter mentioned and all dividends unclaimed
for three years after having been declared may be forfeited by
resolution of directors for the benefit of the Company.
123. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of
which the Company holds directly or indirectly, shares having more than
50 per cent of the vote in electing directors.
124. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
125. In the case of a dividend of authorised but unissued shares with par
value, an amount equal to the aggregate par value of the shares shall
be transferred from surplus to capital at the time of the distribution.
126. In the case of a dividend of authorised but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to
the amount that the share are entitled to as a preference, if any, in
the assets of the Company upon liquidation of the Company.
127. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series
having a proportionately smaller par value does not constitute a
dividend of shares.
ACCOUNTS AND AUDIT
128. The Company may by resolution of members call for the directors to
prepare periodically a profit and loss account and a balance sheet. The
profit and loss account and balance sheet shall be drawn up so as to
give respectively a true and
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fair view of the profit and loss of the Company for the financial
period and a true and fair view of the state of affairs of the Company
as at the end of the financial period.
129. The Company may by resolution of members call for the accounts to be
examined by auditors.
130. The first auditors shall be appointed by resolution of directors,
subsequent auditors shall be appointed by a resolution of members.
131. The auditors may be members of the Company but no director or other
officer shall be eligible to be an auditor of the Company during his
continuance in office.
132. The remuneration of the auditors of the Company
(a) in the case of auditors appointed by the directors, may be
fixed by resolution of directors;
(b) subject to the foregoing, shall be fixed by resolution of
members or in such manner as the Company may be resolution of
members determine.
133. The auditors shall examine each profit and loss account and balance
sheet required to be served on every member of the Company or laid
before a meeting of the members of the Company and shall state in a
written report whether or not
(a) in their opinion the profit and loss account and balance sheet
give a true and fair view respectively of the profit or loss
for the period covered by the accounts, and of the state of
affairs of the Company at the end of that period, and
(b) all the information and explanations required by the auditors
have been obtained.
134. The report of the auditors shall be annexed to the accounts and shall
be read at the meeting of members at which the accounts are laid before
the Company or shall be served on the members.
135. Every auditor of the Company shall have a right of access at all times
to the books of account and vouchers of the Company, and shall be
entitled to require from the directors and officers of the Company such
information and explanations as he thinks necessary for the performance
of the duties of the auditors.
136. The auditors of the Company shall be entitled to receive notice of, and
to attend any meetings of members of the Company as which the Company's
profit and loss account and balance sheet are to be presented.
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NOTICES
137. Any notice, information or written statement to be given by the Company
to members may be served in the case of members holding registered
shares in any way by which it can reasonably be expected to reach each
member or by mail addressed to each member at the address shown in the
share register.
138. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or
by sending it by registered mail addressed to the Company, at its
registered office, or by leaving it with, or by sending it by
registered mail to, the registered agent of the Company.
139. Service of any summons, notice, order, document, process, information
or written statement to be served on the Company may be proved by
showing that the summons, notice, order, document, process, information
or written statement was delivered to the registered office or the
registered agent of the Company or that it was mailed in such time as
to admit to its being delivered to the registered office or the
registered agent of the Company in the normal course of delivery within
the period prescribed for service and was correctly addressed and the
postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
140. The directors may establish and maintain or procure the establishment
and maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities, pensions, allowances or emoluments to any
persons who are or were at any time in the employment or service of the
Company or any company which is a subsidiary of the Company or is
allied to or associated with the Company or with any such subsidiary,
or who are or were at any time directors or officers of the Company or
of any such other company as aforesaid or who hold or held any salaried
employment or office in the Company or such other company, or any
persons in whose welfare the Company or any such other company as
aforesaid is or has been at any time interested, and to the wives,
widows, families and dependents of any such person, and may make
payments for or towards the insurance of any such persons as aforesaid,
and may do any of the matters aforesaid either alone or in conjunction
with any such other company as aforesaid. Subject always to the
proposal being approved by resolution of members, a director holding
any such employment, or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension
allowance or emolument.
ARBITRATION
141. Whenever any difference arises between the Company on the one hand and
any of the members or their executors, administrators or assigns on the
other hand, touching the true intent and construction or the incidence
or consequences of these Articles or of the Act, touching anything done
or executed, omitted or suffered in pursuance of the Act or touching
any breach or alleged breach or otherwise relating to the premises or
to these Articles, or to any Act or Ordinance affecting the Company or
to any of the affairs of the Company such
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difference shall, unless the parties agree to refer the same to a
single arbitrator, be referred to two arbitrators one to be chosen by
each of the parties to the difference and the arbitrators shall before
entering on the reference appoint an umpire.
142. If either party to the reference makes default in appointing an
arbitrator either originally or by way of substitution (in the event
that an appointed arbitrator shall die, be incapable of acting or
refuse to act) for ten days after the other party has given him notice
to appoint the same, such other party may appoint an arbitrator to act
in the place of the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
143. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of
directors.
CONTINUATION
144. The Company may be resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British
Virgin Islands in the manner provided under those laws.
We, OFFSHORE INCORPORATIONS LIMITED, of P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands for the purpose of
incorporating an International Business Company under the laws of the British
Virgin Islands hereby subscribe our name to these Articles of Association the
1st day of July, 2002.
SUBSCRIBER OFFSHORE INCORPORATIONS LIMITED
/s/ E.T. Powell
--------------------------
E.T. POWELL
Authorised Signatory
in the presence of : WITNESS /s/ Fandy Tsoi
--------------------------
Fandy Tsoi
9th Floor, Ruttonjee House
11 Duddell Street, Central
Hong Kong
Occupation: Operations Manager
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