EXHIBIT 3.2
THE COMPANIES LAW (2007 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
E-HOUSE (CHINA) HOLDINGS LIMITED
Adopted by Special Resolution
passed on July 16, 2007 and
effective immediately upon completion of the Company's initial public offering
of ordinary shares represented by American Depositary Shares
1. The name of the Company is E-HOUSE (CHINA) HOLDINGS LIMITED.
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 (2007 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 authorized share capital of the Company is US$1,000,000 divided into
1,000,000,000 shares of a nominal or par value of US$0.001 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 (2007 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. Capitalized terms that are not defined in this Amended and Restated
Memorandum of Association bear the same meaning as those given in the Amended
and Restated Articles of Association of the Company adopted by Special
Resolution passed on July 16, 2007 and effective immediately upon completion of
the Company's initial public offering of ordinary shares represented by American
Depositary Shares.
THE COMPANIES LAW (2007 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
E-HOUSE (CHINA) HOLDINGS LIMITED
Adopted by Special Resolution
passed on July 16, 2007 and
effective immediately upon completion of the Company's initial public offering
of ordinary shares represented by American Depositary Shares
INTERPRETATION
1. In these Articles, unless otherwise defined, the defined terms shall have
the meanings assigned to them as follows:
"ARTICLES"
the Amended and Restated Articles of Association adopted by Special
Resolution on July 16, 2007 and effective immediately upon
commencement of the trading of the Company's American Depositary
Shares representing its Ordinary Shares on the New York Stock
Exchange, as from time to time altered or added to in accordance
with the Statutes and these Articles;
"BOARD"
the board of Directors of the Company;
"BUSINESS DAY"
a day (excluding Saturdays or Sundays), on which banks in Hong Kong,
Beijing and New York are open for general banking business
throughout their normal business hours;
"COMMISSION"
Securities and Exchange Commission of the United States of America
or any other federal agency for the time being administering the
Securities Act;
"COMPANIES LAW"
the Companies Law (2007 Revision) of the Cayman Islands and any
statutory amendment or re-enactment thereof. Where any provision of
the Companies Law is referred to, the reference is to that provision
as amended by any law for the time being in force;
"COMPANY"
E-House (China) Holdings Limited, a Cayman Islands company limited
by shares;
"COMPANY'S WEBSITE"
the website of the Company, the address or domain name of which has
been notified to Members;
"DIRECTORS" and "BOARD OF DIRECTORS" and "BOARD"
the directors of the Company for the time being, or as the case may
be, the Directors assembled as a Board or as a committee thereof;
"ELECTRONIC"
the meaning given to it in the Electronic Transactions Law (2003
Revision) of the Cayman Islands and any amendment thereto or
re-enactments thereof for the time being in force and includes every
other law incorporated therewith or substituted therefore;
"ELECTRONIC COMMUNICATION"
electronic posting to the Company's Website, transmission to any
number, address or internet website or other electronic delivery
methods as otherwise decided and approved by not less than
two-thirds of the vote of the Board;
"IN WRITING"
includes writing, printing, lithograph, photograph, type-writing and
every other mode of representing words or figures in a legible and
non-transitory form and, only where used in connection with a notice
served by the Company on Members or other persons entitled to
receive notices hereunder, shall also include a record maintained in
an electronic medium which is accessible in visible form so as to be
useable for subsequent reference;
"MEMBER"
a person whose name is entered in the Register of Members as the
holder of a share or shares;
"MEMORANDUM OF ASSOCIATION"
the Memorandum of Association of the Company, as amended and
re-stated from time to time;
"MONTH"
calendar month;
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"ORDINARY RESOLUTION"
a resolution:
(a) passed by a simple majority of votes cast by such Members as,
being entitled to do so, vote in person or, in the case of any
Member being an organization, by its duly authorized
representative or, where proxies are allowed, by proxy at a
general meeting of the Company; or
(b) 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 and the effective
date of the resolution so adopted shall be the date on which
the instrument, or the last of such instruments if more than
one, is executed;
"ORDINARY SHARES"
shares of par value of US$0.001 each in the capital of the Company
with the rights set out in these Articles;
"PAID UP"
paid up as to the par value and any premium payable in respect of
the issue of any shares and includes credited as paid up;
"REGISTER OF MEMBERS"
the register to be kept by the Company in accordance with Section 40
of the Companies Law;
"SEAL"
the Common Seal of the Company including any facsimile thereof;
"SECURITIES ACT"
the Securities Act of 1933 of the United States of America, as
amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be
in effect at the time;
"SHARE"
any share in the capital of the Company, including the Ordinary
Shares and shares of other classes;
"SIGNED"
includes a signature or representation of a signature affixed by
mechanical means or an electronic symbol or process attached to or
logically associated with an electronic communication and executed
or adopted by a person with the intent to sign the electronic
communication;
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"SPECIAL RESOLUTION"
a resolution passed in accordance with Section 60 of the Companies
Law and includes an unanimous written resolution expressly passed as
a special resolution;
"STATUTES"
the Companies Law and every other laws and regulations of the Cayman
Islands for the time being in force concerning companies and
affecting the Company;
"YEAR"
calendar year.
2. In these Articles, save where the context requires otherwise:
(a) words importing the singular number shall include the plural number
and vice versa;
(b) words importing the masculine gender only shall include the feminine
gender;
(c) words importing persons only shall include companies or associations
or bodies of persons, whether corporate or not;
(d) "MAY" shall be construed as permissive and "SHALL" shall be
construed as imperative;
(e) a reference to a dollar or dollars (or $) is a reference to dollars
of the United States;
(f) references to a statutory enactment shall include reference to any
amendment or re-enactment thereof for the time being in force;
(g) 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; and
(h) Section 8 of the Electronic Transactions Law (2003 Revision) shall
not reply.
3. Subject to the last two preceding Articles, any words defined in the
Companies Law shall, if not inconsistent with the subject or context, bear
the same meaning in these Articles.
PRELIMINARY
4. The business of the Company may be commenced as soon after incorporation
as the Directors see fit, notwithstanding that only part of the shares may
have been allotted or issued.
5. The registered office of the Company shall be at such address in the
Cayman Islands as the Directors shall from time to time determine. The
Company may in addition
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establish and maintain such other offices and places of business and
agencies in such places as the Directors may from time to time determine.
SHARE CAPITAL
6. The authorized share capital of the Company at the date of adoption of
these Articles is US$1,000,000 divided into 1,000,000,000 ordinary shares
of a nominal or par value of US$0.001 each with power for the Company
insofar as is permitted by law, to redeem or purchase any of its shares
and to increase or reduce the said capital subject to the provisions of
the Companies Law and these Articles 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.
ISSUE OF SHARES
7. Subject to the provisions, if any, in the Articles and to any direction
that may be given by the Company in a general meeting, the Directors may,
in their absolute discretion and without approval of the holders of
Ordinary Shares, cause the Company to issue such amounts of Ordinary
Shares and/or preferred shares, grant rights over existing shares or issue
other securities in one or more series as they deem necessary and
appropriate and determine designations, powers, preferences, privileges
and other rights, including dividend rights, conversion rights, terms of
redemption and liquidation preferences, any or all of which may be greater
than the powers and rights associated with the Ordinary Shares, at such
times and on such other terms as they think proper. The Company shall not
issue shares in bearer form.
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,
without payment, be entitled to a certificate within two months after
allotment or lodgement of transfer (or within such other period as the
conditions of issue shall provide) in the form determined by the
Directors. All certificates shall specify the share or shares held by that
person and the amount paid up thereon, 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 several joint holders shall be sufficient delivery to all.
All certificates for shares shall be delivered personally or sent through
the post addressed to the member entitled thereto at the Member's
registered address as appearing in the register.
9. Every share certificate of the Company shall bear legends required under
the applicable laws, including the Securities Act.
10. Any two or more certificates representing shares of any one class held by
any Member may at the Member's request be cancelled and a single new
certificate for such shares issued in lieu on payment (if the Directors
shall so require) of US$1.00 or such smaller sum as the Directors shall
determine.
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11. If a share certificate shall be damaged or defaced or alleged to have been
lost, stolen or destroyed, a new certificate representing the same shares
may be issued to the relevant member upon request subject to delivery up
of the old certificate or (if alleged to have been lost, stolen or
destroyed) compliance with such conditions as to evidence and indemnity
and the payment of out-of-pocket expenses of the Company in connection
with the request as the Directors may think fit.
12. In the event that shares are held jointly by several persons, any request
may be made by any one of the joint holders and if so made shall be
binding on all of the joint holders.
TRANSFER OF SHARES
13. The instrument of transfer of any share shall be in writing and executed
by or on behalf of the transferor and shall be accompanied by the
certificate of the shares to which it relates and such other evidence as
the Directors may reasonably require to show the right of the transferor
to make the transfer. The transferor shall be deemed to remain a holder of
the share until the name of the transferee is entered in the Register of
Members in respect thereof. The Board may, in its sole discretion, decline
to register any transfer of any ordinary share which is not fully paid up
or on which we have a lien. The Directors may also decline to register any
transfer of any ordinary share unless (a) the instrument of transfer is
lodged with the Company, accompanied by the certificate for the ordinary
shares to which it relates and such other evidence as the Board may
reasonably require to show the right of the transferor to make the
transfer; (b) the instrument of transfer is in respect of only one class
of ordinary shares; (c) the instrument of transfer is properly stamped, if
required; (d) in the case of a transfer to joint holders, the number of
joint holders to whom the ordinary share is to be transferred does not
exceed four; (e) the shares conceded are free of any lien in favor of us;
or (f) a fee of such maximum sum as the New York Stock Exchange may
determine to be payable, or such lesser sum as the Board may from time to
time require, is paid to the Company in respect thereof. If the Directors
refuse to register a transfer they shall, within two months after the date
on which the instrument of transfer was lodged, send to each of the
transferor and the transferee notice of such refusal. The registration of
transfers may, on 14 days' notice being given by advertisement in such one
or more newspapers or by electronic means, be suspended and the register
closed at such times and for such periods as the Board may from time to
time determine, provided, however, that the registration of transfers
shall not be suspended nor the register closed for more than 30 days in
any year.
14. All instruments of transfer that shall be registered shall be retained by
the Company.
REDEMPTION AND PURCHASE OF OWN SHARES
15. Subject to the provisions of the Statutes and these Articles, the Company
may:
(a) issue shares on terms that they are to be redeemed or are liable to
be redeemed at the option of the Company or the Member on such terms
and in such manner as the Company may, before the issue of such
shares, determine by Special Resolution;
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(b) purchase its own shares (including any redeemable shares) on such
terms and in such manner as the Directors may determine and agree
with the Member; and
(c) make a payment in respect of the redemption or purchase of its own
shares otherwise than out of profits or the proceeds of a fresh
issue of shares.
16. Any share in respect of which notice of redemption has been given shall
not be entitled to participate in the profits of the Company in respect of
the period after the date specified as the date of redemption in the
notice of redemption.
17. The redemption or purchase of any share shall not be deemed to give rise
to the redemption or purchase of any other share.
18. The Directors may when making payments in respect of redemption or
purchase of shares, if authorized by the terms of issue of the shares
being redeemed or purchased or with the agreement of the holder of such
shares, make such payment in any form of consideration permitted by the
Statutes.
VARIATION OF RIGHTS ATTACHING TO SHARES
19. If at any time the share capital is divided into different classes of
shares, the rights attaching to any class (unless otherwise provided by
the terms of issue of the shares of that class) may, subject to these
Articles, be varied or abrogated with the consent in writing of the
holders of a majority 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.
20. 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.
21. 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 in priority
to or pari passu therewith.
COMMISSION ON SALE OF SHARES
22. The Company may in so far as the Statutes from time to time permit 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
23. No person shall be recognised by the Company as holding any share upon any
trust and the Company shall not be bound by or be compelled in any way to
recognise
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(even when having notice thereof) any equitable, contingent, future, or
partial interest in any share, or any interest in any fractional part of a
share, or (except only as is otherwise provided by these Articles or the
Statutes) any other rights in respect of any share except an absolute
right to the entirety thereof in the registered holder.
LIEN ON SHARES
24. The Company shall have a first and paramount lien and charge on all shares
(whether fully paid-up or not) registered in the name of a Member (whether
solely or jointly with others) for all debts, liabilities or engagements
to or with the Company (whether presently payable or not) by such Member
or his estate, either alone or jointly with any other person, whether a
Member or not, but the Directors may at any time declare any share to be
wholly or in part exempt from the provisions of this Article. The
registration of a transfer of any such share shall operate as a waiver of
the Company's lien (if any) thereon. The Company's lien (if any) on a
share shall extend to all dividends or other monies payable in respect
thereof.
25. The Company may sell, in such manner as the Directors think fit, any
shares on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists is presently payable nor
until the expiration of 14 calendar days after a notice in writing,
stating and demanding payment of such part of the amount in respect of
which the lien exists as is presently payable, has been given to the
registered holder for the time being of the share, or the persons entitled
thereto by reason of his death or bankruptcy.
26. For giving effect to any such sale the Directors may authorise some person
to transfer the shares sold to the purchaser thereof. The purchaser shall
be registered as the holder of the shares comprised in any such transfer
and he shall not be bound to see to the application of the purchase money,
nor shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
27. The proceeds of the sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as
is presently payable, and the residue shall (subject to a like lien for
sums not presently payable as existed upon the shares prior to the sale)
be paid to the person entitled to the shares at the date of the sale.
CALLS ON SHARES
28. The Directors may from time to time make calls upon the Members in respect
of any money unpaid on their shares, and each member shall (subject to
receiving at least 14 calendar days notice specifying the time or times of
payment) pay to the Company at the time or times so specified the amount
called on his shares. A call shall be deemed to have been made at the time
when the resolution of the Directors authorising such call was passed.
29. The joint holders of a share shall be jointly and severally liable to pay
calls in respect thereof.
30. If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall
pay interest upon the
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sum at the rate of eight percent per annum from the day appointed for the
payment thereof to the time of the actual payment, but the Directors shall
be at liberty to waive payment of that interest wholly or in part.
31. The provisions of these Articles as to the liability of joint holders and
as to payment of interest 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 amount of the share, or by way of premium,
as if the same had become payable by virtue of a call duly made and
notified.
32. The Directors may make arrangements on the issue of shares for a
difference between the Members, or the particular shares, in the amount of
calls to be paid and in the times of payment.
33. The Directors may, if they think fit, receive from any member willing to
advance the same all or any part of the moneys uncalled and unpaid upon
any shares held by him, and upon all or any of the moneys so advanced may
(until the same would, but for such advance, become presently payable) pay
interest at such rate (not exceeding without the sanction of an Ordinary
Resolution, eight percent. per annum) as may be agreed upon between the
Member paying the sum in advance and the Directors. 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
34. If a Member fails to pay any call or instalment of a call on the day
appointed for payment thereof, the Directors may, at any time thereafter
during such time as any part of such call or instalment remains unpaid,
serve a notice on him requiring payment of such much of the call or
instalment as is unpaid, together with any interest which may have
accrued.
35. The notice shall name a further day (not earlier than the expiration of 14
calendar days from the date 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
the call was made will be liable to be forfeited.
36. 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 notice has been made, be
forfeited by a resolution of the Directors to that effect.
37. 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 think 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 moneys which at the date of forfeiture were
payable by him to the Company in
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respect of the shares, but his liability shall cease if and when the
Company receives payment in full of the fully paid up amount of the
shares.
39. A statutory declaration in writing that the declarant is a Director of the
Company, and that a share in the Company has been duly forfeited on a date
stated in the declaration, shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the
share. The Company may receive the consideration, if any, given for the
share or 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
due and payable, whether on account of the amount 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 probate, letters of administration,
certificate of death or marriage, power of attorney, notice in lieu of
distringas, or other instrument.
TRANSMISSION OF SHARES
42. The legal personal representative of a deceased sole holder of a share
shall be the only person recognised by the Company as having any title to
the share. In the case of a share registered in the name of two or more
holders, the survivors or survivor, or the legal personal representatives
of the deceased survivor, shall be the only person recognised by the
Company as having any title to the share.
43. Any person becoming entitled to a share in consequence of the death or
bankruptcy of a Member shall upon such evidence being produced as may from
time to time be properly required by the Directors, have the right either
to be registered as a member in respect of the share or, instead of being
registered himself, to make such transfer of the share as the deceased or
bankrupt person could have made. 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
of the holder 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 90 calendar 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.
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ALTERATION OF CAPITAL
45. Subject to these Articles, the Company may from time to time by Ordinary
Resolution increase the share capital by such sum, to be divided into
shares of such classes and amount, as the resolution shall prescribe.
46. Subject to these Articles, the Company may by Ordinary Resolution:
(a) consolidate and divide all or any of its share capital into shares
of larger amount than its existing shares;
(b) sub-divide its existing shares, or any of them into shares of a
smaller amount provided that in the subdivision the proportion
between the amount paid and the amount, if any unpaid on each
reduced share shall be the same as it was in case of the share from
which the reduced share is derived;
(c) cancel any shares which, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any person
and diminish the amount of its share capital by the amount of the
shares so cancelled.
47. The Company may by Special Resolution reduce its share capital and any
capital redemption reserve in any manner authorized by law.
48. All new shares created hereunder shall be subject to the same provisions
with reference to the payment of calls, liens, transfer, transmission,
forfeiture and otherwise as the shares in the original share capital.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
49. For the purpose of determining those Members that are entitled to receive
notice of, attend or vote at any meeting of Members or any adjournment
thereof, or those Members that are entitled to receive payment of any
dividend, or in order to make a determination as to who is a Member for
any other purpose, the Directors may provide that the Register of Members
shall be closed for transfers for a stated period but not to exceed in any
case 30 calendar days. If the Register of Members shall be so closed for
the purpose of determining those Members that are entitled to receive
notice of, attend or vote at a meeting of Members such register shall be
so closed for at least 10 calendar days immediately preceding such meeting
and the record date for such determination shall be the date of the
closure of the Register of Members.
50. In lieu of or apart from closing the Register of Members, the Directors
may fix in advance a date as the record date for any such determination of
those Members that are entitled to receive notice of, attend or vote at a
meeting of the Members and for the purpose of determining those Members
that are entitled to receive payment of any dividend, the Directors may,
at or within 30 calendar days prior to the date of declaration of such
dividend fix a subsequent date as the record date of such determination.
51. If the Register of Members is not so closed and no record date is fixed
for the determination of those Members entitled to receive notice of,
attend or vote at a meeting of Members or those Members that are entitled
to receive payment of a dividend, the date on which notice of the meeting
is posted or the date on which the
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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 those Members that are entitled to receive notice
of, attend or vote at a meeting of Members has been made as provided in
this section, such determination shall apply to any adjournment thereof.
GENERAL MEETINGS
52. All general meetings of the Company other than annual general meetings
shall be called extraordinary general meetings.
53. (a) The Company may hold an annual general meeting but shall not (unless
required by the Companies Law) be obliged to hold an annual general
meeting.
(b) At these meetings the report of the Directors (if any) shall be
presented.
54. (a) The Directors may call general meetings, and they shall on a Members
requisition forthwith proceed to convene an extraordinary general
meeting of the Company.
(b) A Members requisition is a requisition of Members of the Company
holding at the date of deposit of the requisition not less than
one-third of the share capital of the Company as at that date
carries the right of voting at general meetings of the Company.
(c) 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.
(d) If the Directors do not within 21 calendar days from the date of the
deposit of the requisition duly proceed to convene a general meeting
to be held within a further 21 calendar 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 second said 21 calendar
days.
(e) A general meeting convened as aforesaid by requisitionists shall be
convened in the same manner as nearly as possible as that in which
general meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
55. At least 14 calendar days' notice shall be given for any general meeting.
Every notice shall be exclusive of the day on which it is given or deemed
to be given and of the day for which it is given and shall specify the
place, the day and the hour of the meeting and the general nature of the
business and shall be given in the manner hereinafter mentioned or in such
other manner if any as may be prescribed by the Company, provided that a
general meeting of the Company shall, whether or not the notice specified
in this regulation has been given and whether or not the provisions of
Articles regarding general meetings have been complied with, be deemed to
have been duly convened if it is so agreed:
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(a) in the case of an annual general meeting by all the Members (or
their proxies) entitled to attend and vote thereat; 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.
56. The accidental omission to give notice of a meeting to or the non-receipt
of a notice of a meeting by any Member shall not invalidate the
proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
57. No business shall be transacted at any general meeting unless a quorum of
Members is present at the time when the meeting proceeds to business.
Members holding not less than an aggregate of one-third of all voting
share capital of the Company in issue present in person or by proxy and
entitled to vote shall be a quorum for all purposes. 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.
58. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of Members,
shall be dissolved. In any other case it shall stand adjourned to the same
day in the next week, at the same time and place, and if at the adjourned
meeting a quorum is not present within half an hour from the time
appointed for the meeting, the meeting shall be dissolved.
59. The Chairman of the Board of Directors shall preside as chairman at every
general meeting of the Company.
60. If at any meeting the Chairman of the Board of Directors is not present
within fifteen minutes after the time appointed for holding the meeting or
is unwilling to act as chairman, the Members present shall choose a
chairman of the meeting.
61. The Chairman may with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting) adjourn a 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 meeting is adjourned
for 10 calendar days or more, not less than seven Business Days' notice of
the adjourned meeting shall be given as in the case of an original
meeting. Save as aforesaid it shall not be necessary to give any notice of
an adjournment or of the business to be transacted at an adjourned
meeting.
62. At any general meeting a resolution put to the vote of the meeting shall
be decided on a show of hands, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by one or more
Members present in person or by proxy entitled to vote and who together
hold not less than 10 per cent of the paid up voting share capital of the
Company, and unless a poll is so demanded, a declaration by the chairman
that a resolution has, on a show of hands, been carried, or carried
unanimously, or by a particular majority, or lost, and an entry to that
effect in the book
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of the proceedings of the Company, shall be conclusive evidence of the
fact, without proof of the number or proportion of the votes recorded in
favour of, or against, that resolution.
63. If a poll is duly demanded it shall be taken in such manner as the
chairman directs, and the result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded. The demand for a
poll may be withdrawn.
64. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman of the meeting at which the show of hands takes place
or at which the poll is demanded, shall not be entitled to a second or
casting vote.
65. 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 meeting
directs.
VOTES OF MEMBERS
66. Subject to any rights and restrictions for the time being attached to any
class or classes of shares, every Member present in person and every
person representing a Member by proxy at a general meeting of the Company
shall have one vote for each share registered in his name in the Register
of Members.
67. In the case of joint holders 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 joint holders and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
68. 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, or other person in the nature of a
committee appointed by that court, and any such committee or other person,
may on a poll, vote by proxy.
69. No Member shall be entitled to vote at any general meeting unless all
calls or other sums presently payable by him in respect of shares in the
Company have been paid.
70. On a poll, votes may be given either personally or by proxy.
71. The instrument appointing a proxy shall be in writing under the hand of
the appointor or of his attorney duly authorized in writing or, if the
appointor is a corporation, either under seal or under the hand of an
officer or attorney duly authorized. A proxy need not be a Member of the
Company.
72. An instrument appointing a proxy may be in any usual or common form or
such other form as the Directors may approve.
73. The instrument appointing a proxy shall be deemed to confer authority to
demand or join in demanding a poll.
74. A resolution in writing signed by all the Members for the time being
entitled to receive notice of and to attend and vote at general meetings
(or being corporations by
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their duly authorized representatives) shall be as valid and effective as
if the same had been passed at a general meeting of the Company duly
convened and held.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING
75. Any corporation which is a Member or a Director may by resolution of its
directors or other governing body authorise such person as it thinks fit
to act as its representative at any meeting of the Company or of any class
of Members or of the Board of Directors or of a committee of Directors,
and the person so authorized shall be entitled to exercise the same powers
on behalf of the corporation which he represents as that corporation could
exercise if it were an individual Member or Director.
CLEARING HOUSES
76. 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 authorized, the authorisation shall
specify the number and class of shares in respect of which each such
person is so authorized. A person so authorized 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
77. (A) Unless otherwise determined by the Company in general meeting, the
number of Directors shall not be less than three Directors. The
Directors shall be elected or appointed in the first place by the
subscribers to the Memorandum of Association or by a majority of
them and thereafter by the Members at general meeting.
(B) Each Director shall hold office until the expiration of his term and
until his successor shall have been elected and qualified.
(C) The Board of Directors shall have a Chairman of the Board of
Directors (the "Chairman") elected and appointed by a majority of
the Directors then in office. The Directors may also elect a
Co-Chairman or a Vice-Chairman of the Board of Directors (the
"Co-Chairman"). The Chairman shall preside as chairman at every
meeting of the Board of Directors. To the extent the Chairman is not
present at a meeting of the Board of Directors, the Co-Chairman, or
in his absence, the attending Directors may choose one Director to
be the chairman of the meeting. The Chairman's voting right as to
the matters to be decided by the Board of Directors shall be the
same as other Directors.
(D) Subject to these Articles and the Companies Law, the Company may by
Ordinary Resolution elect any person to be a Director either to fill
a casual vacancy on the Board or as an addition to the existing
Board.
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(E) The Directors by the affirmative vote of a simple majority of the
remaining Directors present and voting at a Board meeting, or the
sole remaining Director, shall have the power from time to time and
at any time to appoint any person as a Director to fill a casual
vacancy on the Board or as an addition to the existing Board,
subject to the Company's compliance with director nomination
procedures required under applicable NYSE corporate governance
rules, as long as the Company's securities are trading on the New
York Stock Exchange.
78. Subject to Article 77, a Director may be removed from office by Special
Resolution at any time before the expiration of his term notwithstanding
anything in these Articles or in any agreement between the Company and
such Director (but without prejudice to any claim for damages under such
agreement).
79. A vacancy on the Board created by the removal of a Director under the
provisions of Article 78 above may be filled by the election or
appointment by Ordinary Resolution at the meeting at which such Director
is removed or by the affirmative vote of a simple majority of the
remaining Directors present and voting at a Board meeting.
80. The Board may, from time to time, and except as required by applicable law
or the listing rules of the recognized stock exchange or automated
quotation system where the Company's securities are traded, adopt,
institute, amend, modify or revoke the corporate governance policies or
initiatives, which shall be intended to set forth the policies of the
Company and the Board on various corporate governance related matters as
the Board shall determine by resolution from time to time.
81. A Director shall not be required to hold any shares in the Company by way
of qualification. A Director who is not a member of the Company shall
nevertheless be entitled to receive notice of and to attend and speak at
general meetings of the Company and all classes of shares of the Company.
DIRECTORS' FEES AND EXPENSES
82. The Directors may receive such remuneration as the Board may from time to
time determine. The Directors may be entitled to be repaid all travelling,
hotel and incidental expenses reasonably incurred or expected to be
incurred by him in attending meetings of the Board or committees of the
Board or general meetings or separate meetings of any class of shares or
of debentures of the Company or otherwise in connection with the discharge
of his duties as a Director.
83. Any Director who, by request, goes or resides abroad for any purpose of
the Company or who performs services which in the opinion of the Board go
beyond the ordinary duties of a Director may be paid such extra
remuneration (whether by way of salary, commission, participation in
profits or otherwise) as the Board may determine and such extra
remuneration shall be in addition to or in substitution for any ordinary
remuneration provided for by or pursuant to any other Article.
ALTERNATE DIRECTOR
84. Any Director may in writing appoint another person to be his alternate to
act in his place at any meeting of the Directors at which he is unable to
be present. Every such
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alternate shall be entitled to notice of meetings of the Directors and to
attend and vote thereat as a Director when the person appointing him is
not personally present and where he is a Director to have a separate vote
on behalf of the Director he is representing in addition to his own vote.
A Director may at any time in writing revoke the appointment of an
alternate appointed by him. Such alternate shall not be an officer of the
Company and shall be deemed to be the agent of the Director appointing
him.
85. Any Director may appoint any person, whether or not a Director, to be the
proxy of that Director to attend and vote on his behalf, in accordance
with instructions given by that Director, or in the absence of such
instructions at the discretion of the proxy, at a meeting or meetings of
the Directors which that Director is unable to attend personally. The
instrument appointing the proxy shall be in writing under the hand of the
appointing Director and shall be in any usual or common form or such other
form as the Directors may approve, and must be lodged with the chairman of
the meeting of the Directors at which such proxy is to be used, or first
used, prior to the commencement of the meeting.
POWERS AND DUTIES OF DIRECTORS
86. Subject to the provisions of the Companies Law, these Articles and to any
resolutions made in a general meeting, the business of the Company shall
be managed by the Directors, who may pay all expenses incurred in setting
up and registering the Company and may exercise all powers of the Company.
No resolution made by the Company in a general meeting shall invalidate
any prior act of the Directors that would have been valid if that
resolution had not been made.
87. Subject to these Articles, the Directors may from time to time appoint any
person, whether or not a director of the Company to hold such office in
the Company as the Directors may think necessary for the administration of
the Company, including without prejudice to the foregoing generality, the
office of the Chief Executive Officer, one or more Vice Presidents, Chief
Financial Officer, Manager or Controller, and for such term and at such
remuneration (whether by way of salary or commission or participation in
profits or partly in one way and partly in another), and with such powers
and duties as the Directors may think fit. The Directors may also appoint
one or more of their number to the office of Managing Director upon like
terms, but any such appointment shall ipso facto determine if any Managing
Director ceases from any cause to be a Director, or if the Company by
Ordinary Resolution resolves that his tenure of office be terminated.
88. The Directors may delegate any of their powers to committees consisting of
such member or members of their body as they think fit; any committee so
formed shall in the exercise of the powers so delegated conform to any
regulations that may be imposed on it by the Directors.
89. The Directors may from time to time and at any time by power of attorney
appoint any company, firm or person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys
of the Company for such purposes and with such powers, authorities and
discretion (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 power of attorney may contain
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such provisions for the protection and convenience of persons dealing with
any such attorney as the Directors may think fit, and may also authorise
any such attorney to delegate all or any of the powers, authorities and
discretion vested in him.
90. 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 following paragraphs shall be without
prejudice to the general powers conferred by this paragraph.
91. 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 and may appoint any managers or agents of the Company and
may fix the remuneration of any of the aforesaid.
92. 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.
93. Any such delegates as aforesaid may be authorized by the Directors to
subdelegate all or any of the powers, authorities, and discretions for the
time being vested to them.
94. 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, 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.
DISQUALIFICATION OF DIRECTORS
95. Subject to Article 77, the office of Director shall be vacated, if the
Director:
(a) becomes bankrupt or makes any arrangement or composition with his
creditors;
(b) is found to be or becomes of unsound mind;
(c) resigns his office by notice in writing to the Company;
(d) without special leave of absence from the Board, is absent from
meetings of the Board for six consecutive months and the Board
resolves that his office be vacated; or
(e) if he or she shall be removed from office pursuant to these Articles
or the Statutes.
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PROCEEDINGS OF DIRECTORS
96. Subject to Article 77, the Directors may meet together (whether within or
outside the Cayman Islands) for the dispatch of business, adjourn, and
otherwise regulate their meetings and proceedings as they think fit.
Questions arising at any meeting of the Directors shall be decided by a
majority of votes. In case of an equality of votes the chairman shall not
have a second or casting vote. A Director may at any time summon a meeting
of the Directors by at least three Business Days' notice to every other
Director and alternate Director.
97. A Director or Directors may participate in any meeting of the Board of
Directors, or of any committee appointed by the Board of Directors of
which such Director or Directors are members, by means of telephone or
similar communication equipment by way of which all persons participating
in such meeting can hear each other and such participation shall be deemed
to constitute presence in person at the meeting.
98. The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors and unless so fixed shall be a majority of
the Directors then in office, provided that a Director and his appointed
alternate Director shall be considered only one person for this purpose. A
meeting of the Directors at which a quorum is present when the meeting
proceeds to business shall be competent to exercise all powers and
discretions for the time being exercisable by the Directors. A meeting of
the Directors may be held by means of telephone or teleconferencing or any
other telecommunications facility provided that all participants are
thereby able to communicate immediately by voice with all other
participants.
99. Subject to Article 77, a Director who is in any way, whether directly or
indirectly, interested in a contract or proposed contract with the Company
shall declare the nature of his interest at a meeting of the Directors. A
general notice given to the Directors by any Director to the effect that
he is a member of any specified company or firm and is to be regarded as
interested in any contract which may thereafter be made with that company
or firm shall be deemed a sufficient declaration of interest in regard to
any contract so made. A Director may vote in respect of any contract or
proposed contract or arrangement notwithstanding that he may be interested
therein and if he does so his vote shall be counted and he may be counted
in the quorum at any meeting of the Directors at which any such contract
or proposed contract or arrangement shall come before the meeting for
consideration.
100. A 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 and no Director or intending
Director shall be disqualified by his office from contracting with the
Company either with regard to his tenure of any such other office or place
of profit or as vendor, purchaser or otherwise, nor shall any such
contract or arrangement entered into by or on behalf of the Company in
which any Director is in any way interested, be liable to be avoided, nor
shall any Director so contracting or being so interested be liable to
account to the Company for any profit realised by any such contract or
arrangement by reason of such Director holding that office or of the
fiduciary relation thereby established. A Director, notwithstanding his
interest, may be counted in the quorum present at any meeting whereat he
or any other Director is appointed to hold any such office or place of
profit under the Company or whereat the terms of any such appointment are
arranged and he may vote on any such appointment or arrangement.
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101. Any 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; provided that nothing
herein contained shall authorise a Director or his firm to act as auditor
to the Company.
102. The Directors shall cause minutes to be made in books or loose-leaf
folders provided for the purpose of recording:
(a) all appointments of officers made by the Directors;
(b) the names of the Directors present at each meeting of the Directors
and of any committee of the Directors; and
(c) all resolutions and proceedings at all meetings of the Company, and
of the Directors and of committees of Directors.
103. When the chairman of a meeting of the Directors signs the minutes of such
meeting the same shall be deemed to have been duly held notwithstanding
that all the Directors have not actually come together or that there may
have been a technical defect in the proceedings.
104. A resolution signed by all the Directors shall be as valid and effectual
as if it had been passed at a meeting of the Directors duly called and
constituted. When signed a resolution may consist of several documents
each signed by one or more of the Directors.
105. 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 may act for the purpose of increasing the number, or
of summoning a general meeting of the Company, but for no other purpose.
106. The Directors shall elect a chairman of their meetings and determine the
period for which he is to hold office but if at any meeting the chairman
is not present within fifteen minutes after the time appointed for holding
the same, the Directors present may choose one of their number to be
chairman of the meeting.
107. A committee appointed by the Directors may elect a chairman of its
meetings. If no such chairman is elected, or if at any meeting the
chairman is not present within five minutes after the time appointed for
holding the same, the members present may choose one of their number to be
chairman of the meeting.
108. A committee appointed by the Directors may meet and adjourn as it thinks
proper. Questions arising at any meeting shall be determined by a majority
of votes of the committee members present and in case of an equality of
votes the chairman shall have a second or casting vote.
109. All acts done by any meeting of the Directors or of a committee of
Directors, or by any person acting as a Director, shall notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such Director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person
had been duly appointed and was qualified to be a Director.
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PRESUMPTION OF ASSENT
110. 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.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
111. Subject to any rights and restrictions for the time being attached to any
class or classes of shares and these Articles, the Directors may from time
to time declare dividends (including interim dividends) and other
distributions on shares in issue and authorise payment of the same out of
the funds of the Company lawfully available therefor.
112. Subject to any rights and restrictions for the time being attached to any
class or classes of shares and these Articles, the Company by Ordinary
Resolution may declare dividends, but no dividend shall exceed the amount
recommended by the Directors.
113. The Directors may, before recommending or declaring any dividend, set
aside out of the funds legally available for distribution such sums as
they think proper as a reserve or reserves which shall, at the discretion
of the Directors be applicable for meeting contingencies, or for
equalising dividends or for any other purpose to which those funds be
properly applied and pending such application may, at the like discretion,
either be employed in the business of the Company or be invested in such
investments (other than shares of the Company) as the Directors may from
time to time think fit.
114. Any dividend may be paid by cheque or wire transfer to the registered
address of the Member or person entitled thereto, or in the case of joint
holders, to any one of such joint holders at his registered address or to
such person and such address as the Member or person entitled, or such
joint holders as the case may be, may direct. Every such cheque shall be
made payable to the order of the person to whom it is sent or to the order
of such other person as the Member or person entitled, or such joint
holders as the case may be, may direct.
115. The Directors when paying dividends to the Members in accordance with the
foregoing provisions may make such payment either in cash or in specie.
116. No dividend shall be paid otherwise than out of profits or, subject to the
restrictions of the Companies Law, the share premium account.
117. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends, all dividends shall be declared and paid according
to the amounts paid or credited as fully paid on the shares, but if and so
long as nothing is paid up on any of the shares in the Company dividends
may be declared and paid according to the
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amounts of the shares. No amount paid on a share in advance of calls
shall, while carrying interest, be treated for the purposes of this
Article as paid on the share.
118. If several persons are registered as joint holders of any share, any of
them may give effectual receipts for any dividend or other moneys payable
on or in respect of the share.
119. No dividend shall bear interest against the Company.
BOOK OF ACCOUNTS
120. The books of account relating to the Company's affairs shall be kept in
such manner as may be determined from time to time by the Directors.
121. The books of account shall be kept at such place or places as the
Directors think fit, and shall always be open to the inspection of the
Directors.
122. 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 authorized by the
Directors or by the Company by Ordinary Resolution.
123. The accounts relating to the Company's affairs shall be audited in such
manner and with such financial year end as may be determined from time to
time by the Company by Ordinary Resolution or failing any such
determination by the Directors or failing any determination as aforesaid
shall not be audited.
ANNUAL RETURNS AND FILINGS
124. The Board shall make the requisite annual returns and any other requisite
filings in accordance with the Companies Law.
AUDIT
125. 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.
126. 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.
127. 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 special 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.
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THE SEAL
128. The Seal of the Company shall not be affixed to any instrument except by
the authority of a resolution of the Board of Directors provided always
that such authority may be given prior to or after the affixing of the
Seal and if given after may be in general form confirming a number of
affixings of the Seal. The Seal shall be affixed in the presence of any
one or more persons as the Directors may appoint for the purpose and every
person as aforesaid shall sign every instrument to which the Seal of the
Company is so affixed in their presence.
129. The Company may maintain a facsimile of its Seal in such countries or
places as the Directors may appoint and such facsimile Seal shall not be
affixed to any instrument except by the authority of a resolution of the
Board of Directors provided always that such authority may be given prior
to or after the affixing of such facsimile Seal and if given after may be
in general form confirming a number of affixings of such facsimile Seal.
The facsimile Seal shall be affixed in the presence of such person or
persons as the Directors shall for this purpose appoint and such person or
persons as aforesaid shall sign every instrument to which the facsimile
Seal of the Company is so affixed in their presence of and the instrument
signed by a Director or the Secretary (or an Assistant Secretary) of the
Company or in the presence of any one or more persons as the Directors may
appoint for the purpose.
130. Notwithstanding the foregoing, a Director shall have the authority to
affix the Seal, or the facsimile Seal, to any instrument for the purposes
of attesting authenticity of the matter contained therein but which does
not create any obligation binding on the Company.
OFFICERS
131. Subject to Article 87, the Company may have a Chief Executive Officer,
Chief Operating Officer and Chief Financial Officer, one or more Vice
Presidents, Manager or Controller, appointed by the Directors. The
Directors may also from time to time appoint such other officers as they
consider necessary, all for such terms, at such remuneration and to
perform such duties, and subject to such provisions as to disqualification
and removal as the Directors from time to time subscribe.
CAPITALISATION OF PROFITS
132. Subject to the Statutes and these Articles, the Board may, with the
authority of an Ordinary Resolution:
(a) resolve to capitalise an amount standing to the credit of reserves
(including a share premium account, capital redemption reserve and
profit and loss account), whether or not available for distribution;
(b) appropriate the sum resolved to be capitalised to the Members in
proportion to the nominal amount of shares (whether or not fully
paid) held by them respectively and apply that sum on their behalf
in or towards:
(i) paying up the amounts (if any) for the time being unpaid on
shares held by them respectively; or
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(ii) paying up in full unissued shares or debentures of a nominal
amount equal to that sum,
and allot the shares or debentures, credited as fully paid, to the
Members (or as they may direct) in those proportions, or partly in
one way and partly in the other, but the share premium account, the
capital redemption reserved and profits which are not available for
distribution may, for the purposes of this Article, only be applied
in paying up unissued shares to be allotted to Members credited as
fully paid;
(c) make any arrangements it thinks fit to resolve a difficulty arising
in the distribution of a capitalised reserve and in particular,
without limitation, where shares or debentures become distributable
in fractions the Board may deal with the fractions as it thinks fit;
(d) authorise a person to enter (on behalf of all the Members concerned)
an agreement with the Company providing for either:
(i) the allotment to the Members respectively, credited as fully
paid, of shares or debentures to which they may be entitled on
the capitalisation, or
(ii) the payment by the Company on behalf of the Members (by the
application of their respective operations of the reserves
resolved to be capitalised) of the amounts or part of the
amounts remaining unpaid on their existing shares,
an agreement made under the authority being effective and binding on
all those Members; and
(e) generally do all acts and things required to give effect to the
resolution.
NOTICES
133. Except as otherwise provided in these Articles, any notice or document may
be served by the Company or by the person entitled to give notice to any
Member either personally, by facsimile or by sending it through the post
in a prepaid letter or via a recognised courier service, fees prepaid,
addressed to the Member at his address as appearing in the Register of
Members or, to the extent permitted by all applicable laws and
regulations, by electronic means by transmitting it to any electronic
number or address or website supplied by the member to the Company or by
placing it on the Company's Website. In the case of joint holders of a
share, all notices shall be given to that one of the joint holders whose
name stands first in the Register of Members in respect of the joint
holding, and notice so given shall be sufficient notice to all the joint
holders.
134. Notices posted to addresses outside the Cayman Islands shall be forwarded
by prepaid airmail.
135. Any Member present, either personally or by proxy, at any meeting of the
Company shall for all purposes be deemed to have received due notice of
such meeting and, where requisite, of the purposes for which such meeting
was convened.
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136. Any notice or other document, if served by (a) post, shall be deemed to
have been served five calendar days after the time when the letter
containing the same is posted and if served by courier, shall be deemed to
have been served five calendar days after the time when the letter
containing the same is delivered to the courier (in proving such service
it shall be sufficient to prove that the letter containing the notice or
document was properly addressed and duly posted or delivered to the
courier), or (b) facsimile, shall be deemed to have been served upon
confirmation of receipt, or (c) recognised delivery service, shall be
deemed to have been served 48 hours after the time when the letter
containing the same is delivered to the courier service and in proving
such service it shall be sufficient to provide that the letter containing
the notice or documents was properly addressed and duly posted or
delivered to the courier or (d) electronic means as provided herein shall
be deemed to have been served and delivered on the day following that on
which it is successfully transmitted or at such later time as may be
prescribed by any applicable laws or regulations.
137. Any notice or document delivered or sent to any Member in accordance with
the terms of these Articles shall notwithstanding that such Member be then
dead or bankrupt, and whether or not the Company has notice of his death
or bankruptcy, be deemed to have been duly served in respect of any share
registered in the name of such Member as sole or joint holder, unless his
name shall at the time of the service of the notice or document, have been
removed from the Register of Members as the holder of the share, and such
service shall for all purposes be deemed a sufficient service of such
notice or document on all persons interested (whether jointly with or as
claiming through or under him) in the share.
138. Notice of every general meeting shall be given to:
(a) all Members who have supplied to the Company an address for the
giving of notices to them;
(b) every person entitled to a share in consequence of the death or
bankruptcy of a Member, who but for his death or bankruptcy would be
entitled to receive notice of the meeting; and
(c) each Director and Alternate Director.
No other person shall be entitled to receive notices of general meetings.
INFORMATION
139. No Member shall be entitled to require discovery of any information in
respect of any detail of the Company's trading or any information 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.
140. 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.
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INDEMNITY
141. Every Director (including for the purposes of this Article any Alternate
Director appointed pursuant to the provisions of these Articles) and
officer of the Company for the time being and from time to time shall be
indemnified and secured harmless out of the assets and funds of the
Company against all actions, proceedings, costs, charges, expenses,
losses, damages or liabilities incurred or sustained by him in connection
with the execution or discharge of his duties, powers, authorities or
discretions as a Director or officer of the Company, including without
prejudice to the generality of the foregoing, any costs, expenses, losses
or liabilities incurred by him in defending (whether successfully or
otherwise) any civil proceedings concerning the Company or its affairs in
any court whether in the Cayman Islands or elsewhere.
142. No such Director or officer of the Company shall be liable to the Company
for any loss or damage unless such liability arises through the willful
neglect or default of such Director or officer.
FINANCIAL YEAR
143. Unless the Directors otherwise prescribe, the financial year of the
Company shall end on December 31st in each year and shall begin on January
1st in each year.
WINDING UP
144. Subject to these Articles, if the Company shall be wound up the liquidator
may, with the sanction of an Ordinary Resolution of the Company divide
amongst the Members in specie or kind the whole or any part of the assets
of the Company (whether they shall consist of property of the same kind or
not) and may, for such purpose set such value as he deems fair upon any
property to be divided as aforesaid and may determine how such division
shall be carried out as between the Members or different classes of
Members. The liquidator may, with the like sanction, vest the whole or any
part of such assets in trustees upon such trusts for the benefit of the
contributories as the liquidator, with the like sanction shall think fit,
but so that no Member shall be compelled to accept any shares or other
securities whereon there is any liability.
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION AND
NAME OF COMPANY
145. Subject to the Companies Law and these Articles, the Company may at any
time and from time to time by Special Resolution alter or amend these
Articles or the Memorandum of Association of the Company, in whole or in
part, or change the name of the Company.
REGISTRATION BY WAY OF CONTINUATION
146. Subject to these Articles, the Company may by Special Resolution resolve
to be registered by way of continuation in a jurisdiction outside the
Cayman Islands or such other jurisdiction in which it is for the time
being incorporated, registered or existing. In furtherance of a resolution
adopted pursuant to this Article, the Directors may cause an application
to be made to the Registrar of Companies to deregister the Company in the
Cayman Islands or such other jurisdiction in which it is for the time
being
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incorporated, registered or existing and may cause all such further steps
as they consider appropriate to be taken to effect the transfer by way of
continuation of the Company.
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