Exhibit 3(c)
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
ARTICLES OF ASSOCIATION
OF
CHINA ELITE INFORMATION CO., LTD.
PRELIMINARY
1. In these Articles, if not inconsistent 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.
Word Meaning
Act The International Business Companies Act (Cap. 291) including
any modification, extension, re-enactment or renewal thereof
and any regulations made thereunder.
Articles These Articles of Association as originally framed or as from
time to time amended.
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.
Memorandum The Memorandum of Association of the Company as originally
framed or as from time to time amended.
Person An individual, a corporation, a trust, the estate of a
deceased individual, a partnership or an unincorporated
association of persons.
Resolution of (a) A resolution approved at a duly convened and
Directors constituted meeting of directors of the Company or
of a committee of directors of the 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 (a) A resolution approved at a duly convened and
Members 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 vote 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;
Seal Any seal which has been duly adopted as the seal of the
Company.
Securities Shares and debt obligations of every kind, and options,
warrants and rights to acquire shares, or debt
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.
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 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.
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, AUTHORIZED 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 issued for such amount of consideration as
the directors 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, qualifications, 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 authorized capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such 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 purchased, 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 the Company will be able to satisfy its
liabilities as they become due in the ordinary course of its business and
the realizable 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 realizable 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 of a 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 percent of the
issued shares of the Company in which case they shall be cancelled but
they shall be available for reissue.
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 percent 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 unrealized appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
MORTGAGES 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
authorized 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 authorized to act on his
behalf.
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 following
provisions 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 14 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 moneys 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 share 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,
and 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 from the provisions of this Regulation.
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 twenty-one 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 the
directors may authorize 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, nor 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 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 12 months.
TRANSMISSION OF SHARES
4l. 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 recognized 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.
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 or 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 purposes 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 AUTHORIZED CAPITAL OR CAPITAL
46. The Company may amend the Memorandum to increase or reduce its authorized
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.
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 realizable 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 realizable 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 10 percent 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 7 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 percent of the total number of
shares entitled to vote on all matters to be considered at the
meeting, or 90 percent of the votes of each class or series of
shares where Members are entitled to vote thereon as a class or
series together with not less than a 90 percent majority of the
remaining votes, have agreed to short notice of the meeting, or
(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
6l. 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.
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 percent
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 by 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 directors is not present
at the meeting, the Members present shall choose some one 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
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 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 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
by resolution of its directors or other governing body authorize 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
authorized shall be entitled to exercise the same powers on behalf of the
Person which he represents as that Person could exercise if it were an
individual Member of the Company.
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 7 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
resolution. 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 subscriber to
the Memorandum; and thereafter, the directors shall be elected by the
Members or by the directors for such term as the Members or the directors
determine.
74. The minimum number of directors shall be one and the maximum number shall
be 7.
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 office, with or without cause, by a
Resolution of Members or, with cause, by a Resolution of Directors.
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 to fill
a vacancy. 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 Persons 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.
8l. 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 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 powers as may be authorized 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 a 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 authorize the
agent to appoint one or more 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 and authority 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
authorized 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 for 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 moneys 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 encumbrance:
(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.
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 3 days notice of meetings of
directors, but a meeting of directors held without 3 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 2 directors in which case the quorum shall be 2.
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 of 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 some one 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.
100. The directors shall cause the following corporate records to be kept:
(a) minutes of all meetings of directors, Members, committees 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 by Resolution of
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
2 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 by 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 on the
Company by applicable law, and the treasurer 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
the 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 other
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 investigative 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 investigative, 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 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 judgment, 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 amounts 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 authorized from time to
time by Resolution of Directors. Such authorization 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 authorized 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 authorizing the dividends, a fair and proper value
for the assets to be so distributed.
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 aside 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 realizable 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 realizable 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 3
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 percent 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 authorized 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 authorized 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 shares 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 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; and
(b) subject to the foregoing, shall be fixed by Resolution of Members or
in such manner as the Company may by 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 and 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 at which the Company's
profit and loss account and balance sheet are to be presented.
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 difference shall, unless the parties agree
to refer the same to a single arbitrator, be referred to 2 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 10 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 by 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.