Exhibit 3.34
Companies (Victoria) Code
- -------------------------
A COMPANY LIMITED BY SHARES
---------------------------
MEMORANDUM OF ASSOCIATION
-------------------------
- of -
DATAKEY ALCATEL
---------------
1. The Company is incorporated pursuant to the Companies (Victoria) Code ("the
Code").
2. The name of the Company is DATAKEY ALCATEL ("the Company")
3. Subject to any restriction or prohibition contained in this Memorandum or
the Articles of Association, the Company shall have the rights, powers and
privileges granted by Section 67 of the Code, or any subsequent amendment
or re-enactment of that Section.
[OR (if the Company requires objects)].
4. The liability of the members is limited.
5. The share capital of the Company is Ten thousand dollars ($10,000.00)
divided into 10,000 shares of One dollar ($1.00) each. The Company shall
have power to increase or reduce its capital for the time being and to
divide the shares in the capital for the time being into several or
different classes and to issue any part or parts of the capital for the
time being with such preferred deferred qualified guaranteed or other
special rights privileges conditions restrictions or limitations
whether in regard to dividend voting return of capital distribution of
assets or otherwise howsoever as may from time to time be determined in
accordance with the Articles of Association for the time being of the
Company. The rights for the time being attached to any class or classes of
shares may be varied or abrogated subject to the requirements of the Code
in the manner provided in the Articles of Association for the time being of
the Company.
6. The Company is a proprietary company and accordingly the following
provisions shall apply:
(1) The right to transfer any share or shares of the Company is restricted in
the manner provided by the Articles of Association;
(2) The number of members of the Company is limited to not more than fifty
(counting joint holders of shares as one person and not counting any person
in the employment of the Company or of its subsidiary or any person who,
while previously in the employment of the Company or of its subsidiary was,
and thereafter has continued to be, a member of the Company);
(3) The Company shall not make any invitation to the public to subscribe for,
or any offer to the public to accept subscriptions for, any shares in, or
debentures of, the Company; and
(4) The Company shall not make any invitation to the public to deposit money
with, or any offer to the public to accept deposits of money with, the
Company for fixed periods or payable at call, whether bearing or not
bearing interest.
WE the several persons whose names, addresses and occupations are
subscribed are desirous of being formed into a Company in pursuance of this
Memorandum of Association and respectively agree to take the number of
shares in the capital of the Company set out opposite our respective names.
Companies (Victoria) Code
-------------------------
ARTICLES OF ASSOCIATION
-----------------------
- of -
DATAKEY ALCATEL
---------------
INTERPRETATION
--------------
1. (a) The regulations contained in Table "A" in the Third Schedule to the
Companies (Victoria) Code shall not apply to this Company.
(b) In these Articles:
"the Code" means the Companies (Victoria) Code;
"representative" means a person appointed by a Corporation pursuant to
sub-Section 244(3) of the Code;
"the seal" means the common seal of the Company and includes any
official seal of the Company;
"secretary" means any person appointed to perform the duties of a
secretary of the Company;
"State" means the State of Victoria.
(c) Section 40 of the Companies and Securities (Interpretation and
Miscellaneous Provisions) (Victoria) Code applies in relation to these
Articles as if they were an instrument made by an authority under a
power conferred by the Code as in force on the date on which these
Articles became binding on the Company.
(d) An expression used in a particular Part or Division of the Code that
is given by that Part or Division a special meaning for the purposes
of that Part or Division has, in any of these Articles that deals with
a matter dealt with by that Part or Division, unless the contrary
intention appears, the same meaning as in that Part or Division.
(e) Notwithstanding anything in this Article to the contrary, words or
expressions contained in these Articles shall be interpreted in
accordance with the provisions of the Code, the Companies and
Securities (Interpretation and Miscellaneous Provisions) (Victoria)
Code and, except where its provisions are expressly excluded or where
to do so would give rise to an inconsistency, the Acts Interpretation
Act, 1958 to the extent that the aforesaid provisions remain in force
at the date on which these Articles became binding on the Company.
SHARE CAPITAL AND VARIATION OF RIGHTS
-------------------------------------
2. (a) The Capital of the Company is Ten Thousand Dollars ($10,000.00)
divided into Seven Thousand Six Hundred (7,600) "A" Class ordinary
shares of $1.00 each (which shall include the shares issued to the
subscribers) and Two Thousand Four Hundred (2,4000) "B" Class ordinary
shares of $1,00 each.
(b) The unissued ordinary shares shall be under the control of the
Directors but before issue shall be offered in the manner set out in
Article 42 hereof to such persons as at the date of the offer are
entitled to receive notices from the Company of General Meetings in
proportion to their
2
shareholdings as in the said Article provided and so that the
remaining provisions of the said Article shall apply to the shares the
subject of the offer.
(c) Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares, but subject to the
Code, shares in the Company may be issued by the directors and any
such share may be issued with such preferred, deferred, or other
special rights or such restrictions whether with regard to dividend,
voting, return of capital, or otherwise, as the directors, subject to
any resolution, determine."
3. Subject to the Code, any preference shares may, with the sanction of a
resolution, be issued on the terms that they are, or at the option of the
Company are liable, to be redeemed.
4. If at any time the share capital is divided into different classes of
shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the Company
is being wound up, be varied with the consent in writing of the holders of
three-quarters of the issued shares of that class, or with the sanction of
a special resolution passed at a separate meeting of the holders of the
shares of the class. The provisions of these Articles relating to general
meetings apply so far as they are capable of application and mutatis
mutandis to every such separate meeting except that the necessary quorum
shall be two persons who, between them, hold or represent by proxy
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.
3
5. The rights conferred upon the holders of the shares of any class issued
with preferred or other rights shall, 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 equally with the
first-mentioned shares.
6. The Company may exercise the power to pay commissions conferred by the
Code, provided that the rate per cent or the amount of the commission paid
or agreed to be paid shall be disclosed in the manner required by the Code
and the commission shall not exceed the rate of 10 per cent of the price at
which the shares in respect of which the commission is paid are issued.
Such commission may be satisfied by the payment of cash or the allotment of
fully or partly paid 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.
7. Except as required by law, no persons 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 (even when having notice of the
interest or right concerned) any equitable, contingent, future, or partial
interest in any share or unit of a share or (except only as by these
Articles or by law otherwise provided) any other right in respect of a
share except an absolute right of ownership in the registered holder.
8. Every person whose name is entered as a member in the register of members
shall be entitled without payment to receive a certificate in respect of
the share under the seal of the Company in accordance with the Code but, in
respect of a share or shares held jointly by several persons, the Company
shall not be bound to issue
4
more than one certificate, and delivery of a certificate for a share to one
of several joint holders shall be sufficient delivery to all such holders.
LIEN
----
9. The Company shall have a first and paramount lien on every share (not being
a fully paid share) for all money (whether presently payable or not) called
or payable at a fixed time in respect of that share, and the Company shall
also have a first and paramount lien on all shares (other than fully paid
shares) registered in the name of a sole holder for all money presently
payable by him or his estate to the Company; but the directors may at any
time declare any share to be wholly or in part exempt from the provisions
of this Article. The Company's lien, if any, on a share shall extend to all
dividends payable thereon.
10. 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 a sum in
respect of which the lien exists is presently payable, nor until the
expiration of fourteen days after a notice in writing setting out, 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 person entitled thereto by reason of
his death or bankruptcy.
11. To give effect to any such sale the directors may authorise some person to
transfer the shares sold to the purchaser thereof. The Company shall
register the purchaser 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 connection with the sale.
5
12. The proceeds of a sale mentioned in Articles 10 and 11 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 (if any)
shall (subject to any like lien for sums not presently payable as existed
upon the shares before the sale) be paid to the person entitled to the
shares at the date of the sale.
CALLS ON SHARES
---------------
13. The directors may make calls upon the members in respect of any money
unpaid on their shares (whether on account of the nominal value of the
shares or by way of premium) and not by the terms of issue thereof made
payable at fixed times, and each member shall (subject to receiving at
least fourteen days' notice specifying the time or times and place of
payment) pay to the Company at the time or times and place so specified the
amount called on his shares. A call may be revoked or postponed as the
directors may determine.
14. A call shall be deemed to have been made at the time when the resolution of
the directors authorising the call was passed and may be required to be
paid by installments.
15. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
16. 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 on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding 20 per cent per annum as
the directors determine, but the directors shall be at liberty to waive
payment of that interest wholly or in part.
6
17. Any sum that, by the terms of issue of a share, becomes payable on
allotment or at a fixed date, whether on account of the nominal value of
the share or by way of premium, shall for the purposes of these regulations
be deemed to be a call duly made and payable on the date on which by the
terms of issue the sum becomes payable, and in case of non-payment, all the
relevant provisions of these Articles as to payment of interest and
expenses, forfeiture, or otherwise shall apply as if the sum had become
payable by virtue of a call duly made and notified.
18. The directors may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment.
19. The directors may accept from a member the whole or a part of the amount
unpaid upon any shares held by him although no part of that amount has been
called up and upon the whole or any part of the amount so accepted may
(until the amount becomes payable) authorise payment by the Company of
interest at such rate not exceeding (unless the Company has, by resolution,
determined a different rate) 20 per cent per annum as is agreed upon
between the directors and the member paying the sum.
TRANSFER OF SHARES
------------------
20. Subject to these Articles, a member may transfer all or any of his shares
by instrument in writing in any usual or common form or in any other form
that the directors approve. The instrument shall be executed by or on
behalf of both the transferor and the transferee; and the transferor shall
remain the holder of the shares transferred until the transfer is
registered and the name of the transferee is entered in the register of
members in respect of the shares.
7
21. The instrument of transfer must be left for registration at the registered
office of the Company, together with such fee (if any) not exceeding $1.00
as the directors require, accompanied by the certificate of the shares to
which it relates and such other information as the directors properly
require to show the right of the transferor to make the transfer, and
thereupon the Company shall, subject to the powers vested in the directors
by these Articles, register the transferee as a shareholder.
22. The directors may, in their absolute discretion, refuse to register a
transfer (whether voluntary or by operation of law) of any share or shares,
without being bound to assign any reason for such refusal.
23. (a) Except as hereinafter provided no shares in the Company shall be
transferred unless and until the rights of pre-emption hereinafter
conferred shall have been exhausted.
(b) Every member, or other person referred to in Article 26, who intends
to transfer shares (hereinafter called "the vendor") shall give notice
in writing to the board of his intention. That notice shall constitute
the board his agent for the sale of the said shares in one or more
lots, at the discretion of the board to members of the Company at a
price to be agreed upon by the vendor and the board or in case of
difference at the price which the auditor of the Company for the time
being (if any) or, if there shall be no auditor of the Company, a
chartered accountant nominated for the purpose by the State President
for the time being of the Institute of Chartered Accountants in
Australia (Victorian Branch), shall certify by writing under his hand
to
8
be in his opinion the fair selling value thereof as between a willing
vendor and a willing purchaser.
(c) Upon the price being fixed as aforesaid the board shall forthwith give
notice to all the members of the Company of the numbers and price of
the shares to be sold and invite each of them to state in writing
within twenty-one days from the date of the said notice whether he is
willing to purchase any and if so what maximum number of the said
shares.
(d) At the expiration of the said twenty-one days the board shall allocate
the said shares to or amongst the members or member who shall have
expressed their or his willingness to purchase as aforesaid and (if
more than one) so far as may be pro rata according to the number of
shares already held by them respectively provided that no member shall
be obliged to take more than the said maximum number of shares so
notified by him as aforesaid. Upon such allocation being made the
vendor shall be bound on payment of the said price to transfer the
shares to the purchaser or purchasers. If he makes default in so doing
the chairman for the time being of the directors of the Company or
failing him one of the directors duly nominated by resolution of the
board for that purpose shall forthwith be deemed to be duly appointed
attorney of the vendor with the full power to execute complete and
deliver in the name and on behalf of the vendor a transfer of the
shares to the purchasing member and the board may receive and give a
good discharge for the purchase money on behalf of the vendor
9
and enter the name of the purchaser in the register of members as
holder by transfer of the said shares purchased by him.
(e) In the event of the whole of the said shares not being sold under
sub-clause (d) hereof the vendor may at any time (within six months)
after the expiration of the said twenty-one days transfer the shares
not so sold to any person (subject to Article 22 hereof) and at any
price.
(f) Sub-clauses (a), (b), (c), (d) and (e) hereof shall not apply to a
transfer:
(i) by a subscriber to the Memorandum of Association of the share
for which he subscribed;
(ii) to a transfer to a person who is already a member of the
Company;
(iii) to a transfer merely for the purpose of effectuating the
appointment of new trustees;
(iv) to a transfer by personal representatives to a legatee under the
will of a deceased member;
(v) to the persons beneficially entitled thereto upon the
distribution of the estate of a deceased member; or
(vi) to a transfer by a trustee to a beneficiary, provided that it is
proved to the satisfaction of the board that the transfer bona
fide falls within one of these exceptions.
10
24. The registration of transfers may be suspended at such times and for such
periods as the directors from time to time determine not exceeding in the
whole thirty days in any year.
TRANSMISSION OF SHARES
----------------------
25. In the case of the death of a member, the survivor or survivors where the
deceased was a joint holder, and the legal representatives of the deceased
where he was a sole holder, shall be the only persons recognised by the
Company as having any title to his interest in the shares; but nothing
herein contained shall release the estate of a deceased joint holder from
any liability in respect of a share that had been jointly held by him with
other persons.
26. (a) Subject to the Bankruptcy Act 1966, a person becoming entitled to a
share in consequence of the death or bankruptcy of a member may, upon
such information being produced as is properly required by the
directors and subject as hereinafter provided, elect either to be
registered himself as holder of the share or to have some other person
nominated by him registered as the transferee of the share.
(b) If the person so becoming entitled elects to be registered himself, he
shall deliver or send to the Company a notice in writing signed by him
stating that he so elects.
(c) If he elects to have another person registered, he shall execute a
transfer of the share to that other person.
11
27. All the limitations, restrictions, and provisions of these Articles
relating to the right to transfer and the registration of transfers of
shares shall be applicable to any notice or transfer referred to in Article
26 as if the death or bankruptcy of the member had not occurred and the
notice or transfer were a transfer signed by that member.
28. Where the registered holder of any share dies or becomes bankrupt, his
personal representative or the trustee of his estate, as the case may be
is, upon the production of such information as is properly required by the
directors, entitled to the same dividends and other advantages, and to the
same rights (whether in relation to meetings of the Company, or to voting
or otherwise), as the registered holder would have been entitled to if he
had not died or become bankrupt; and where two or more persons are jointly
entitled to any share in consequence of the death of the registered holder,
they shall, for the purposes of these Articles, be deemed to be joint
holders of the share.
FORFEITURE OF SHARES
--------------------
29. If a member fails to pay a 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 the call or instalment remains unpaid,
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest that has accrued.
30. The notice shall name a further day (not earlier than the expiration of
fourteen days from the date of service 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-
12
payment at or before the time appointed, the shares in respect of which the
call was made will be liable to be forfeited.
31. If the requirements of a notice served under Article 29 are not complied
with, any share in respect of which the notice has been given may at any
time thereafter before the payment required by the notice has been made, be
forfeited by a resolution of the directors to that effect. Such forfeiture
shall include all dividends declared in respect of the forfeited shares and
not actually paid before the forfeiture.
32. 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.
33. A person whose shares have been forfeited shall cease to be a member in
respect of the forfeited shares, but remains liable to pay to the Company
all money which, at the date of forfeiture, was payable by him to the
Company in respect of the shares (together with interest at the rate of 15
per cent per annum from the date of forfeiture on the money for the time
being unpaid if the directors think fit to enforce payment of such
interest), but his liability shall cease if and when the Company receives
payment in full of all the money (including interest) so payable in respect
of the shares.
34. A statement in writing that the person making the statement is a director
or the Secretary of the Company, and that a share in the Company has been
duly forfeited on a date stated in the statement, is prima facie evidence
of the facts therein stated as against all persons claiming to be entitled
to the share.
13
35. The Company may receive the consideration, if any, given for a forfeited
share on any sale or disposition thereof and may execute a transfer of the
share in favour of the person to whom the share is sold or disposed of and
the transferee shall thereupon be registered as the holder of the share,
and shall not be bound to see to the application of any money paid as
consideration, nor shall his title to the share be affected by any
irregularity or invalidity in connecxion with the forfeiture, sale, or
disposal of the share.
36. The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum that, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the
share or by way of premium, as if that sum had been payable by virtue of a
call duly made and notified.
CONVERSION OF SHARES INTO STOCK
-------------------------------
37. The Company may, by resolution, convert all or any paid up shares into
stock and reconvert any stock into paid up shares of any nominal value.
38. Where shares have been converted into stock, the provisions of these
Articles relating to the transfer of shares apply, so far as they are
capable of application, to the transfer of the stock or of any part of the
stock; but the directors may fix the minimum amount of stock transferable
and restrict or forbid the transfer of fractions of that minimum, but the
minimum shall not exceed the aggregate of the nominal values of the shares
from which the stock arose.
39. The holders of stock have, according to the amount of stock held by them,
the same rights, privileges and advantages as regards dividends, voting at
meetings of
14
the Company and other matters as they would have if they held the shares
from which the stock arose, but no such privilege or advantage (except
participation in the dividends and profits of the Company and in the
property of the Company on winding up) shall be conferred by any amount of
stock that would not, if existing in shares, have conferred that privilege
or advantage.
40. Such of these Articles as are applicable to paid-up shares shall apply to
stock, and the words "share" and "shareholder" therein shall include
"stock" and "stockholder" respectively.
ALTERATION OF CAPITAL
---------------------
41. The Company may by resolution:
(a) increase its authorised share capital by the creation of new shares of
such amount as is specified in the resolution;
(b) consolidate and divide all or any of its authorised share capital into
shares of larger amount than its existing shares;
(c) subdivide its shares or any of them into shares of smaller amount than
is fixed by the memorandum but so that in the subdivision the
proportion between the amount paid and the amount (if any) unpaid on
each such share of a smaller amount shall be the same as it was in the
case of the share from which the share of a smaller amount is derived;
and
(d) cancel shares that, at the date of the passing of the resolution, have
not been taken or agreed to be taken by any person or which have been
15
forfeited and reduce its authorised share capital by the amount of the
shares so cancelled.
42. (a) Save for the shares deemed by virtue of Section 113(6) of the Code
to have been allotted to the subscribers to the Memorandum of
Association on the date of incorporation of the Company, and the first
shares which the directors resolve to allot following that date, all
unissued shares of the initial capital of the Company shall before
issue be offered to such persons as at the date of the offer are
members of the Company in proportion to that amount of existing shares
to which they are entitled and for this purpose "A" Class ordinary
shares hall be offered to the holders of the "A" Class ordinary shares
and "B" Class ordinary shares shall be offered to the holders of the
"B" Class ordinary shares. The offers shall be made by notice
specifying the number of shares offered and limiting the time (not
less than 90 days) within which the offer if not acceptable will be
deemed to be declined and after the expiration of that period those
shares shall be offered on the same terms in proportion to their
existing holdings to the other holders of shares of the sane class who
have accepted an offer in respect of shares offered to them.
(b) All new shares shall be divided into "A" Class ordinary shares and "B"
Class ordinary shares in the proportions of nineteen as to six and
shall for issue be offered to the same persons in a like manner as set
out in paragraph (a) preceding.
16
(c) Any shares proposed to be offered under paragraphs (a) or (b)
preceding and not accepted by the person to whom the same shall be
offered or by a person holding shares of the same class shall be
offered proportionally to the holders of the shares of the other
class.
(d) Any shares not accepted as aforesaid may be disposed of by resolution
of the directors in such manner as they think most beneficial of the
Company.
43. Subject to the Code, the Company may, by special resolution, reduce its
share capital, any capital redemption reserve fund or any share premium
account.
GENERAL MEETINGS
----------------
44. An annual general meeting of the Company shall be held in accordance with
the provisions of the Code.
45. Any director may whenever he thinks fit convene a general meeting, and
general meetings may be convened by any one member.
46. Subject to the provisions of the Code relating to special resolutions and
agreements for shorter notice, fourteen days notice at the least (exclusive
of the day on which the notice is served or deemed to be served, but
inclusive of the day for which notice is given) specifying the place, the
day and the hour of the meeting shall be given to such persons as are
entitled to receive such notices from the Company.
47. The notice referred to in Article 46 shall state the general nature of the
business to be transacted at the meeting. It shall not be necessary for a
notice of an annual
17
general meeting to state that the business to be transacted at the meeting
includes the declaring of a dividend, the consideration of accounts and the
reports of the directors and auditors, the election of directors in the
place of those retiring or the appointment and fixing of the remuneration
of the auditors.
PROCEEDINGS AT GENERAL MEETINGS
-------------------------------
48. 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. Save
as herein otherwise provided, two members present in person shall be a
quorum. For the purposes of this Article "member" includes a person
attending as a proxy or as representing a corporation that is a member.
49. 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, or to such other day and
at such other time and place as the directors may determine, 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.
50. The Chairman, if any, of the Board of directors shall preside as Chairman
at every general meeting of the Company, or if there is no such Chairman,
or if he is not present within fifteen minutes after the time appointed for
the holding of the meeting or is unwilling to act, the members present
shall elect one of their number to be chairman of the meeting.
18
51. The Chairman may, with the consent of any meeting at which a quorum is
present and shall if so directed by the meeting, adjourn the meeting from
time to time and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is adjourned
for thirty days or more, 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.
52. 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:
(a) by the Chairman;
(b) by one member present in person or by representative proxy or
attorney.
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
containing the minutes of the proceedings of the Company, is conclusive
evidence of the fact without proof of the number or proportion of the votes
recorded in favour of or against the resolution.
The demand for a poll may be withdrawn.
53. If a poll is duly demanded, it shall be taken in such manner and either at
once or after an interval or adjournment or otherwise as the Chairman
directs, and the
19
result of the poll shall be the resolution of the meeting at which the poll
was demanded, but a poll demanded on the election of a chairman or on a
question of adjournment shall be taken forthwith.
54. 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, in addition to his deliberative vote (if
any), has a casting vote.
55. Any resolution (not required by the Code to be dealt with in general
meeting) of the Company determined without any general meeting and
evidenced by writing under the hands of all the directors and of members of
the Company holding three-fourths of the issued shares of the Company shall
be as valid and effectual as a resolution duly passed at a general meeting
of the company.
56. Subject to any rights or restrictions for the time being attached to any
class or classes of shares, at meetings of members or classes of members
each member entitled to vote may vote in person or by representative proxy
or attorney and on a show of hands every person present who is a member or
a representative of a member shall have one vote, and on a poll every
member present in person or by representative proxy or attorney shall have
one vote for each share he holds.
57. In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by representative proxy or attorney, shall be accepted
to the exclusion of the votes of the other joint holders; and for this
purpose seniority shall be determined by the order in which the names stand
in the register of members.
20
58. if a member is of unsound mind or is a person whose person or estate is
liable to be dealt with in any way under the law relating to mental health,
his committee or trustee or such other person as properly has the
management of his estate may exercise any rights of the member in relation
to a general meeting as if the committee, trustee or other person were the
member.
59. No member shall be entitled to vote at a general meeting unless all calls
or other sums presently payable by him in respect of shares in the Company
have been paid.
60. No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting at which the vote objected to is given or
tendered, and every vote not disallowed at such meeting shall be valid for
all purposes. Any such objections made in due time shall be referred to the
Chairman of the meeting, whose decision is final.
61. The instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney duly authorised in writing or, if the
appointor is a corporation, either under seal or under the hand of an
officer or attorney duly authorised. A proxy may but need not be member of
the Company. The instrument appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll. The instrument appointing
a proxy may specify the manner in which the proxy is to vote in respect of
a particular resolution and, where an instrument of proxy so provides, the
proxy is not entitled to vote on the resolution except as specified in the
instrument.
21
62. The instrument appointing a proxy shall be in the following form or in a
form as near thereto as circumstances admit:
I/WE_______________________________________________________________________
of_________________________________________________________________________
being a member/members of_____________hereby appoint_______________________
_________________________________of________________________________________
or, in his absence,________________________________________________________
_______________________________________as my/our proxy to vote for_________
me/us on my/our behalf at the *annual general meeting/general meeting of
the Company, to be held on the____day______________________________________
of_________19 , and at any adjournment thereof.
SIGNED this ___ day of_____19
**This form is to be used *in favour of the resolution.
-----------
against
* Strike out whichever is not desired.
** To be inserted if desired.
63.
64.
65.
66. (a)
that class may from time to time appoint another director in place of
any director so removed or of any director so appointed who may die or
resign or vacate office under these Articles.
(b) Every such appointment or removal shall made by instrument or a number
of instruments signed by or on behalf of the holders of the majority
of the shares of the class and shall be effective as soon as
communicated to the Company be letter, telegram, telex or facsimile
machine.
22
67. A director shall not be required to hold any share qualification.
68. The remuneration of the directors shall from time to time be determined by
the Company in general meeting. The remuneration shall be deemed to accrue
from day to day. Every director shall be entitled to be paid out of the
funds of the Company all hotel, travelling and other expenses which he
shall be authorised by the directors to incur.
69. In addition to the circumstances in which the office of a director becomes
vacant by virtue of the Code, the office of a director shall ipso facto
become vacant if the director:
(a) becomes an insolvent under administration, as that term is defined in
Sub-section 5(1) of the Code;
(b) becomes of unsound mind or a person whose person or estate is liable
to be dealt with in any way under the law relating to mental health;
(c) is convicted of an offence referred to in Sub-section 227(2) of the
Code;
(d) by notice in writing to the Company resigns his office or is removed
from office under these Articles; or
(e) becomes prohibited from being a director by reason of an order made
under the Code.
(f) if he is removed as a director under the provisions of Article 66(a).
70. Subject always to the provisions of the Code and to the fullest extent
legally permissible it is expressly intended and agreed and provided that
no director shall be disqualified by his office from contracting or
entering into any arrangement or
23
understanding with the Company either as vendor purchaser or otherwise or
from becoming or remaining a director of any other company promoted by the
Company or in which the Company may be directly or indirectly interested as
a vendor, shareholder or otherwise nor shall any such contract, arrangement
or understanding nor any contract or agreement entered into by or on behalf
of the Company with any corporation or partnership of or in which any
director shall be a director member or otherwise directly or indirectly
interested be avoided nor shall any director so contracting or entering
into any such arrangement or understanding or being such director, member
or otherwise directly or indirectly so interested be liable to account to
the Company for any profit realised by any such contract or arrangement by
reason of such director holding that office or of the fiduciary
relationship thereby established but the nature of his interest must be
declared by him at the meeting of the directors at which any such contract
or arrangement is determined on as required by the Code. A director shall
be entitled to vote at any meeting of directors in respect of any contract,
agreement, arrangement, understanding, matter or thing in which he is
directly or indirectly interested and notwithstanding any office, position
or any fiduciary or other relationship held by or affecting such director
and he shall be entitled to be counted in the quorum at any meeting at
which any such contract, agreement, arrangement, understanding, matter or
thing is considered and he may, notwithstanding such interest, office,
position, fiduciary or other relationship held by or affecting him, attest
the affixing of the seal to any such contract, agreement, or other document
relating to any such contract, agreement, arrangement,
24
understanding, matter or thing. Without prejudice to the generality of the
foregoing, the directors or any of them may lend money to the Company at
interest with or without security or may for a commission or profit
guarantee the repayment of any moneys borrowed by the Company and
underwrite or guarantee the subscription of shares or securities of this or
any corporation in which the Company may be directly or indirectly
interested without being disqualified in respect of his office as a
director or a promoter or otherwise and without being liable to account to
the Company for any such commission or profit. A director may hold any
other office (except that of auditor or receiver and manager of the
Company's property) under the Company in conjunction with the office of
director and on such terms as to remuneration and otherwise as the
directors may determine.
71. Subject to the Code and to the provisions of these Articles, the Company
may from time to time by resolution appoint any person a director of the
Company.
72. Subject to the Code and to the provisions of these Articles and of any
agreement for the time being subsisting, the Company may from time to time
by resolution remove any director from office.
73. The directors shall have power at any time to appoint any person to be a
director, either to fill a casual vacancy or as an addition to the existing
directors, but so that the total number of directors shall not at any time
exceed the number determined in accordance with these Articles.
74. In the event of a vacancy or vacancies in the office of a director or
offices of directors, the remaining directors may act but, if the number of
remaining
25
directors is not sufficient to constitute a quorum at a meeting of
directors, they may act only for the purpose of increasing the number of
directors to a number sufficient to constitute such a quorum or of
convening a general meeting of the Company.
75. Subject to the Code and to the provisions of these Articles, the business
of the Company shall be managed by the directors, who may pay all expenses
incurred in promoting and forming the Company, and may exercise all such
powers of the Company as are not, by the Code or by these Articles,
required to be exercised by the Company in general meeting.
76. Without limiting the generality of Article 75, the directors may exercise
all the powers of the Company to borrow money, to charge any property or
business of the Company or all or any of its uncalled capital and to issue
debentures or give any other security for a debt, liability or obligation
of the Company or of any other person.
77. The directors may exercise all the powers of the Company in relation to any
official seal for use outside the State and in relation to branch
registers.
78. The directors may, by power of attorney, appoint any person or persons to
be the attorney or attorneys of the Company for such purposes and with such
powers, authorities and discretions (not exceeding those vested in or
exercisable by the directors) and for such period and subject to such
conditions as they may think fit, and any such powers of attorney may
contain such provisions for the protection and convenience of persons
dealing with the attorney as the directors think fit and
26
may also authorise the attorney to delegate all or any of the powers,
authorities and discretions vested in him.
79. All cheques, promissory notes, bankers drafts, bills of exchange and other
negotiable instruments, and all receipts for money paid to the Company,
shall be signed, drawn, accepted, endorsed, or otherwise executed, as the
case may be, by any two directors or in such other manner as the directors
determine.
80. The directors shall cause minutes to be made in books kept for that purpose
-
(a) of all appointments of officers;
(b) of names of directors present at all meetings of the Company and of
the directors; and
(c) of all proceedings at all meetings of the Company and of the directors
within one month after the relevant meeting is held.
Such minutes shall be signed by the Chairman of the meeting at which the
proceedings were held or by the Chairman of the next succeeding
meeting.
PROCEEDINGS OF DIRECTORS
------------------------
81. The directors may meet together for the despatch of business and adjourn
and otherwise regulate their meetings as they think fit. A director may at
any time, and the Secretary shall on the requisition of a director, convene
a meeting of the directors.
82. Subject to these Articles, questions arising at a meeting of directors
shall be decided by a majority of votes of directors present and voting and
any such decision shall for all purposes be deemed a decision of the
directors. In case of an
27
equality of votes, the Chairman of the meeting, in addition to his
deliberative vote (if any), has a casting vote.
83. A director may, with the approval of the other directors, appoint a person
(whether a member of the Company or not) to be an alternate director in his
place during such period as he thinks fit. An alternate director shall be
entitled to notice of meetings of the directors and, if the appointor is
not present at such a meeting, shall be entitled to attend and vote in his
stead, and may exercise any powers that the appointor may exercise and the
exercise of any such power by the alternate director shall be deemed to be
the exercise of the power by the appointor. An alternate director shall not
require any share qualification, and shall ipso facto vacate office if the
appointor vacates office as a director or removes the appointee from
office. An appointment or removal under this Article shall be effected by
notice in writing signed by the director making the same and served on the
Company.
84. Until otherwise determined by the Company in general meeting two directors
one of whom shall have been appointed by the holders of the "A" Class
ordinary shares shall be a quorum for a meeting of directors.
85. The Chairman of meetings of directors shall be a director nominated as such
by a majority of the directors appointed by the holders of the "A" Class
ordinary shares. Any Chairman so appointed may from time to time be removed
as such by a majority of the directors appointed by the holders of the "A"
Class ordinary shares. Such majority may from time to time appoint another
Chairman in place of the Chairman so removed or a Chairman who may die or
resign or who may
28
vacate office under these Articles as a director. If there is no such
Chairman elected or if at any meeting the Chairman is not present at the
time by the holders of the "A" Class ordinary shares present shall choose
one of their number as Chairman of such meeting.
86. The directors may delegate any of their powers to a committee or committees
consisting of such of their number as they think fit. A committee to which
any powers have been so delegated shall exercise the powers delegated in
accordance with any directions of the directors and a power so exercised
shall be deemed to have been exercised by the directors.
87. A committee may elect one of their number as Chairman of its meetings; if
no such Chairman is elected, or if at any meeting the Chairman is not
present within ten minutes after the time appointed for the holding of the
meeting or is unwilling to act, the members present may elect one of their
number to be a Chairman of the meeting.
88. A committee may meet and adjourn as it thinks proper. Questions arising at
a meeting of a committee shall be determined by a majority of votes of the
members present and voting, and in the case of an equality of votes, the
Chairman, in addition to his deliberative vote (if any), has a casting
vote.
89. All acts done by any meeting of the directors or of a committee of
directors or by any person acting as a director are, notwithstanding that
it is afterwards discovered that there was some defect in the appointment
of a person to be a director or a member of the committee, or to act as a
director, or that a person so
29
appointed was disqualified, as valid as if the person had been duly
appointed and was qualified to be a director or to be a member of the
committee.
90. If all the directors have signed a document containing a statement that
they are in favour of a resolution of the directors in terms set out in the
document, a resolution in those terms shall be deemed to have been passed
at a meeting of the directors held on the day on which the document was
signed and at the time at which the document was last signed by a director
or, if the directors signed the document on different days, on the day on
which, and at the time at which, the document was last signed by a
director.
For the purposes of this Article, two or more separate documents containing
statements in identical terms each of which is signed by one or more
directors shall together be deemed to constitute one document containing a
statement in those terms signed by those directors on the respective days
on which they signed the separate documents.
A reference in this Article to all the directors does not include a
reference to a director who, at a meeting of directors, would not be
entitled to vote on the resolution.
MANAGING DIRECTORS
------------------
91. The directors may from time to time appoint one or more of their number to
the office of Managing Director for such period and on such terms as they
think fit, and, subject to the terms of any agreement entered into in a
particular case, may revoke any such appointment. The appointment of a
Managing Director shall automatically terminate if he ceases from any cause
to be a director.
30
92. A Managing Director shall, subject to the terms of any agreement entered
into in a particular case, receive such remuneration (whether by way of
salary, commission or participation in profits, or partly in one way and
partly in another) as the directors determine.
93. The directors may confer upon a Managing Director any of the powers
exercisable by them upon such terms and conditions and with such
restrictions as they think fit, and either concurrently with or to the
exclusion of their own powers, and may at any time withdraw, or vary any of
those powers so conferred.
ASSOCIATE DIRECTORS
-------------------
94. The directors may from time to time appoint any person to be an Associate
Director and may from time to time terminate any such appointment. The
directors may from time to time determine and vary the powers, duties and
remuneration of any person so appointed, but a person so appointed shall
not be required to hold any shares to qualify him for appointment nor have
any right to attend or vote at any meeting of directors except by the
invitation and with the consent of the directors.
SECRETARY
---------
95. A Secretary shall in accordance with the Code be appointed by the directors
on such terms and conditions, as to remuneration and otherwise, as they may
think fit.
SEAL
----
96. The directors shall provide for the safe custody of the seal, which shall
only be used by the authority of the directors, or of a committee of the
directors
31
authorised by the directors to authorise the use of the seal, and every
document to which the seal is affixed shall be signed by a director and
shall be countersigned by the Secretary or by another director or by some
other person appointed by the directors to countersign that document or a
class of documents in which that document is included.
ACCOUNTS
--------
97. The directors shall cause such accounting records, as correctly record and
explain the transactions of the Company (including any transactions as
trustee) and the financial position of the Company, to be kept and shall
cause the accounting records to be kept in the manner prescribed by the
Code and shall determine whether and to what extent and at what time and
place and under what conditions or regulations the accounting and other
records 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 paper of the Company
except as provided by law or authorised by the directors or by the Company
in general meeting.
DIVIDENDS AND RESERVES
----------------------
98. The directors may from time to time declare and pay to the members such
dividends as appear to the directors to be justified by the profits of the
Company.
99. No dividend shall be paid otherwise than out of profits or shall bear
interest against the Company.
100. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sums as they think proper as reserves, to be
applied, at the
32
direction of the directors, for any purpose for which the profits of the
Company may be properly applied, and pending any such application may, at
the like discretion, either be employed in the business of the Company or
be invested in such investments as the directors think fit. The directors
may carry forward so much of the profits remaining as they consider ought
not to be distributed as dividends without transferring those profits to a
reserve.
101. Subject to the rights of persons (if any) entitled to shares with special
rights as to dividend, all dividends shall be declared and paid according
to the amounts paid or credited as paid on the shares in respect of which
the dividend is paid, but no amount paid or credited as paid on a share in
advance of a call shall be taken for the purposes of this Article to be
paid or credited as paid on the share. All dividends shall be apportioned
and paid proportionately to the amounts paid or credited as paid on the
shares during any portion or portions of the period in respect of which the
dividend is paid, but, if any share is issued on terms providing that it
will rank for dividend as from a particular date, that share ranks for
dividend accordingly.
102. The directors may deduct from any dividend payable to any member all sums
of money (if any) presently payable by him to the Company on account of
calls or otherwise in relation to shares in the Company.
103. The directors declaring a dividend may, by resolution, direct payment of
the dividend wholly or partly by the distribution of specific assets,
including paid-up shares in, or debentures of any other corporation, and
where any difficulty arises in regard to such a distribution, the directors
may settle the matter as they
33
consider expedient and fix the value for distribution of the specific
assets or any part thereof and may determine that cash payments will be
made to any members on the basis of the value so fixed in order to adjust
the rights of all parties, and may vest any such specific assets in
trustees as the directors consider expedient.
104. Any dividend, interest or other money payable in cash in respect of shares
may be paid by cheque sent through the post directed to the address of the
holder as shown in the register of members or, in the case of joint
holders, to the address shown in the register of members as the address of
the joint holder who is first named in that register; or to such other
address as the holder or joint holders in writing directs or direct. Any
one of two or more joint holders may give effectual receipts for any
dividends, interest or other money payable in respect of the shares held by
them as joint holders.
CAPITALIZATION OF PROFITS
-------------------------
105. The directors may resolve that it is desirable to capitalize any sum, being
the whole or a part of the amount for the time being standing to the credit
of any reserve account or the profit and loss account or otherwise
available for distribution to members, and that that sum be applied, in any
of the ways mentioned in this Article for the benefit of members in the
proportions to which those members would have been entitled in a
distribution of that sum by way of dividend. The ways in which a sum may be
applied for the benefit of members under this Article are:
(i) in paying up any amounts unpaid on shares held by members;
34
(ii) in paying up in full unissued shares or debentures to be issued
to members as fully paid; or
(iii) partly in the one way and partly in the other.
106. The directors shall do all things necessary to give effect to the
resolution and, in particular, to the extent necessary to adjust the rights
of the members among themselves, may:
(a) issue fractional certificates or make cash payments in cases where
shares or debentures become issuable in fractions; and
(b) authorise any person to make, on behalf of all the members entitled to
any further shares or debentures upon the capitalization, an agreement
with the Company providing for the issue to them, credited as fully
paid up, of any such further shares or debentures or for the payment
up by the Company on their behalf of the amounts or any part of the
amounts remaining unpaid on their existing shares by the application
of their respective proportions of the sum resolved to be capitalized,
and any agreement made under an authority referred to in paragraph (b) is
effective and binding on all the members concerned.
NOTICES
-------
107. A notice may be given by the Company to any member either by serving it on
him personally or by sending it by post to him at his address as shown in
the register of members or to the address supplied by him to the Company
for the giving of notices to him. Where a notice is sent by post, service
of the notice shall be
35
deemed to be effected by properly addressing, pre-paying, and posting a
letter containing the notice, and to have been effected, in the case of a
notice of a meeting, on the day after the date of its posting and, in any
other case, at the time at which the letter would be delivered in the
ordinary course of post.
108. A notice may be given by the Company to the joint holders of a share by
giving the notice to the joint holder first named in the register of
members in respect of the share.
109. A notice may be given by the Company to a person entitled to a share in
consequence of the death or bankruptcy of a member by serving it on him
personally or by sending it to him by post addressed to him by name, or by
the title of representative of the deceased, or assignee of the bankrupt or
by any like description, at the address (if any) within the State supplied
for the purpose by the person or, if such an address has not been supplied,
at the address to which the notice might have been sent if the death or
bankruptcy had not occurred.
110. (1) Notice of every general meeting shall be given in the manner
hereinbefore authorised to:
(a) every member;
(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 received notice of the meeting; and
(c) the auditor for the time being of the Company.
(2) No other person shall be entitled to receive notices of general
meetings.
36
WINDING UP
----------
111. If the Company is wound up, the liquidator may, with the sanction of a
special resolution of the Company, divide among the members in kind the
whole or any part of the property of the Company and may for that purpose
set such value as he considers fair upon the property to be so divided and
may determine how the division shall be carried out as between the members
or different classes of members. The liquidator may, with the sanction of a
special resolution of the Company, vest the whole or any part of any such
property in trustees upon such trusts for the benefit of the contributories
as the liquidator thinks fit, but so that no member shall be compelled to
assert any shares or other securities in respect of which there is any
liability.
INDEMNITY
---------
112. Every officer, auditor or agent of the Company shall be indemnified out of
the property of the Company against any liability incurred by him in his
capacity as officer, auditor or agent in defending any proceedings, whether
civil or criminal, in which judgment is given in his favour or in which he
is acquitted or in connection with any application in which relief is under
the Code granted to him by the Court in relation to any such proceedings.
- -------------------------------------------------------------------------------
SIGNATURE OF SUBSCRIBER NAME AND ADDRESS OF WITNESS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DATED the ___ day of ________ 19
37