Attached files
Exhibit
3.3
The
Companies Law (Revised)
Company
Limited by Shares
THE
AMENDED AND RESTATED
ARTICLES
OF ASSOCIATION
OF
CHINA
VANTAGEPOINT ACQUISITION COMPANY
(Adopted
by way of a special resolution passed on [·], 2011)
INDEX
SUBJECT
|
Article No.
|
||
Table
A
|
1
|
||
Interpretation
|
2
|
||
Share
Capital
|
3
|
||
Alteration
Of Capital
|
4-7
|
||
Share
Rights
|
8-9
|
||
Variation
Of Rights
|
10-11
|
||
Shares
|
12-15
|
||
Share
Certificates
|
16-21
|
||
Lien
|
22-24
|
||
Calls
On Shares
|
25-33
|
||
Forfeiture
Of Shares
|
34-42
|
||
Register
Of Members
|
43-44
|
||
Record
Dates
|
45
|
||
Transfer
Of Shares
|
46-51
|
||
Transmission
Of Shares
|
52-54
|
||
Untraceable
Members
|
55
|
||
General
Meetings
|
56-58
|
||
Notice
Of General Meetings
|
59-60
|
||
Proceedings
At General Meetings
|
61-65
|
||
Voting
|
66-77
|
||
Proxies
|
78-83
|
||
Corporations
Acting By Representatives
|
84
|
||
Action
By Written Resolutions Of Members
|
85
|
||
Board
Of Directors
|
86
|
||
Disqualification
Of Directors
|
87
|
||
Executive
Directors
|
88-89
|
||
Directors’
Fees And Expenses
|
90-93
|
||
Directors’
Interests
|
94
|
||
General
Powers Of The Directors
|
95-99
|
||
Borrowing
Powers
|
100-103
|
||
Proceedings
Of The Directors
|
104-113
|
||
Officers
|
114-117
|
||
Register
of Directors and Officers
|
118
|
||
Minutes
|
119
|
||
Seal
|
120
|
||
Authentication
Of Documents
|
121
|
||
Dividends
And Other Payments
|
122-131
|
||
Reserves
|
132
|
||
Capitalization
|
133-134
|
||
Subscription
Rights Reserve
|
135
|
||
Accounting
Records
|
136-140
|
||
Audit
|
141-146
|
||
Notices
|
147-149
|
||
Signatures
|
150
|
||
Winding
Up
|
151-152
|
||
Indemnity
|
153
|
Amendment
To Memorandum and Articles of Association And Name of
Company
|
154
|
Information
|
155
|
Business
Combination
|
156
|
INTERPRETATION
TABLE
A
1. The
regulations in Table A in the Schedule to the Companies Law (Revised) do not
apply to the Company.
INTERPRETATION
2. (1)
Certain of the terms contained in these Articles that are listed in the first
column of the table below, unless the context otherwise requires, shall bear the
meaning set opposite them respectively in the second column.
|
WORD
|
MEANING
|
|
“Auditor”
|
the
independent auditor of the Company which shall be an internationally
recognized firm of independent
accountants.
|
|
“Articles”
|
these
Articles in their present form or as supplemented or amended or
substituted from time to time.
|
“Board”
or “Directors”
|
the
board of directors of the Company or the directors present at a meeting of
directors of the Company at which a quorum is
present.
|
|
“capital”
|
the
share capital from time to time of the
Company.
|
|
“clear
days”
|
in
relation to the period of a notice, that period excluding the day when the
notice is given or deemed to be given and the day for which it is given or
on which it is to take effect.
|
|
“clearing
house”
|
a
clearing house recognized by the laws of the jurisdiction in which the
shares of the Company (or depositary receipts therefor) are listed or
quoted on a stock exchange or interdealer quotation system in such
jurisdiction.
|
|
“Company”
|
China
VantagePoint Acquisition Company
|
“competent
regulatory authority”
|
a
competent regulatory authority in the territory where the
shares of the Company (or depositary receipts therefor) are listed or
quoted on a stock exchange or interdealer quotation system in such
territory.
|
|
“debenture”
and “debenture holder”
|
include
debenture stock and debenture stockholder
respectively.
|
- 1
-
|
“Designated
Stock Exchange”
|
the
OTC Bulletin Board or such other exchange or interdealer quotation system
upon which the Company’s securities are listed or
quoted.
|
“Escrow
Agreement”
|
the escrow agreement to be entered into between
the Company, the Initial Members and a trust company or other
qualified financial institution duly
appointed by the Board to hold the Initial Members’ Shares in
escrow for certain periods of
time.
|
|
“dollars”
and “$”
|
dollars,
the legal currency of the United States of
America.
|
|
“Exchange
Act”
|
the
Securities Exchange Act of 1934, as
amended.
|
|
“head
office”
|
such
office of the Company as the Directors may from time to time determine to
be the principal office of the
Company.
|
|
“Initial
Members”
|
all
of the Members of the Company prior to completion of the
IPO.
|
|
“Initial
Members’ Shares”
|
any shares issued to the Initial Members pursuant
to any private placement prior to the
IPO.
|
|
“IPO
Shares”
|
the
ordinary shares of the Company included in the IPO
Subunits.
|
|
“IPO
Subunits”
|
the
subunits of the Company issued in the Company’s
IPO.
|
|
“IPO”
|
the
Company’s initial public offering of
securities.
|
|
“Law”
|
The
Companies Law, Cap. 22 (Law 3 of 1961, as consolidated and revised) of the
Cayman Islands.
|
|
“Member”
|
a
duly registered holder from time to time of the shares in the capital of
the Company.
|
|
“month”
|
a
calendar month.
|
|
“FINRA”
|
The
Financial Industry Regulatory
Authority.
|
|
“NASD
Rules”
|
the
rules set forth in the NASD Manual as part of the FINRA
rulebook.
|
|
“Notice”
|
written
notice unless otherwise specifically stated and as further defined in
these Articles.
|
- 2
-
|
“Office”
|
the
registered office of the Company for the time
being.
|
“ordinary
resolution”
|
a
resolution shall be an ordinary resolution when it has been passed by a
simple majority of votes cast by such Members as, being entitled so to do,
vote in person or, in the case of any Member being a corporation, by its
duly authorized representative or, where proxies are allowed, by proxy at
a general meeting of which not less than ten (10) clear days’ Notice has
been duly given.
|
“Over
Allotment Option”
|
means
the option granted to the underwriter in the IPO to purchase additional
units up to an aggregate amount up to an additional 375,000 units at a
price equal to $6.00 per unit, less underwriting discounts, until 45 days
from the date of the IPO;
|
|
“paid
up”
|
paid
up or credited as paid up.
|
|
“Public
Member”
|
all
Members of the company from time to time other than the Initial
Members.
|
|
“Register”
|
the
principal register and where applicable, any branch register of Members of
the Company to be maintained at such place within or outside the Cayman
Islands as the Board shall determine from time to
time.
|
“Registration
Office”
|
in
respect of any class of share capital such place as the Board may from
time to time determine to keep a branch register of Members in respect of
that class of share capital and where (except in cases where the Board
otherwise directs) the transfers or other documents of title for such
class of share capital are to be lodged for registration and are to be
registered.
|
|
“SEC”
|
the
United States Securities and Exchange
Commission.
|
|
“Seal”
|
common
seal or any one or more duplicate seals of the Company (including a
securities seal) for use in the Cayman Islands or in any place outside the
Cayman Islands.
|
|
“Secretary”
|
any
person, firm or corporation appointed by the Board to perform any of the
duties of secretary of the Company and includes any assistant, deputy,
temporary or acting secretary.
|
- 3
-
|
“special
resolution”
|
a
resolution shall be a special resolution when it has been passed by a
majority of not less than two-thirds of votes cast by such Members as,
being entitled so to do, vote in person or, in the case of such Members as
are corporations, by their respective duly authorized representative or,
where proxies are allowed, by proxy at a general meeting of which not less
than ten (10) clear days’ Notice, specifying (without prejudice to the
power contained in these Articles to amend the same) the intention to
propose the resolution as a special resolution, has been duly
given. Provided that, except in the case of an annual general
meeting, if it is so agreed by a majority in number of the Members having
the right to attend and vote at any such meeting, being a majority
together holding not less than ninety-five (95) percent in nominal value
of the shares giving that right and in the case of an annual general
meeting, if it is so agreed by all Members entitled to attend and vote
thereat, a resolution may be proposed and passed as a special resolution
at a meeting of which less than ten (10) clear days’ Notice has been
given;
|
a special
resolution shall be effective for any purpose for which an ordinary resolution
is expressed to be required under any provision of these Articles or the
Statutes.
|
“Statutes”
|
the
Law and every other law of the Legislature of the Cayman Islands for the
time being in force applying to or affecting the Company, its Memorandum
of Association and/or these
Articles.
|
|
“Trust
Fund”
|
the
trust account established by the Company at the consummation of its IPO
and into which a certain amount of the net proceeds of the IPO are
deposited.
|
|
“year”
|
a
calendar year.
|
(2) In
these Articles, unless there be something within the subject or context
inconsistent with such construction:
|
(a)
|
words
importing the singular include the plural and vice
versa;
|
|
(b)
|
words
importing a gender include both gender and the
neuter;
|
|
(c)
|
words
importing persons include companies, associations and bodies of persons
whether corporate or not;
|
(d)
|
the
words:
|
|
(i)
|
“may”
shall be construed as
permissive;
|
- 4
-
|
(ii)
|
“shall”
or “will” shall be construed as
imperative;
|
|
(e)
|
expressions
referring to writing shall, unless the contrary intention appears, be
construed as including printing, lithography, photography and other modes
of representing words or figures in a visible form, and including where
the representation takes the form of electronic display, provided that
both the mode of service of the relevant document or notice and the
Member’s election comply with all applicable Statutes, rules and
regulations;
|
|
(f)
|
references
to any law, ordinance, statute or statutory provision shall be interpreted
as relating to any statutory modification or re-enactment thereof for the
time being in force;
|
|
(g)
|
save
as aforesaid words and expressions defined in the Statutes shall bear the
same meanings in these Articles if not inconsistent with the subject in
the context;
|
|
(h)
|
references
to a document being executed include references to it being executed under
hand or under seal or by electronic signature or by any other method and
references to a notice or document include a notice or document recorded
or stored in any digital, electronic, electrical, magnetic or other
retrievable form or medium and information in visible form whether having
physical substance or not.
|
SHARE
CAPITAL
3. (1) The
share capital of the Company at the date on which these Articles come into
effect shall be divided into shares of a par value of $0.001 each.
(2) Subject
to the Law, the Company’s Memorandum and Articles of Association and, where
applicable, the rules of the Designated Stock Exchange and/or any competent
regulatory authority, the Company shall have to purchase or otherwise acquire
its own shares and such power shall be exercisable by the Board in such manner,
upon such terms and subject to such conditions as it thinks fit.
(3) No
share shall be issued to bearer.
ALTERATION OF
CAPITAL
4. The
Company may from time to time by ordinary resolution in accordance with the Law
alter the conditions of its Memorandum of Association to:
|
(a)
|
increase
its capital by such sum, to be divided into shares of such amounts, as the
resolution shall prescribe;
|
|
(b)
|
consolidate
and divide all or any of its capital into shares of larger amount than its
existing shares;
|
- 5
-
|
(c)
|
without
prejudice to the powers of the Board under Article 12, divide its shares
into several classes and without prejudice to any special rights
previously conferred on the holders of existing shares attach thereto
respectively any preferential, deferred, qualified or special rights,
privileges, conditions or such restrictions which in the absence of any
such determination by the Company in general meeting, as the Directors may
determine provided always that, for the avoidance of doubt, where a class
of shares has been authorized by the Company no resolution of the Company
in general meeting is required for the issuance of shares of that class
and the Directors may issue shares of that class and determine such
rights, privileges, conditions or restrictions attaching thereto as
aforesaid, and further provided that where the Company issues shares which
do not carry voting rights, the words “non-voting” shall appear in the
designation of such shares and where the equity capital includes shares
with different voting rights, the designation of each class of shares,
other than those with the most favorable voting rights, must include the
words “restricted voting” or “limited
voting”;
|
|
(d)
|
sub-divide
its shares, or any of them, into shares of smaller amount than is fixed by
the Memorandum of Association (subject, nevertheless, to the Law), and may
by such resolution determine that, as between the holders of the shares
resulting from such sub-division, one or more of the shares may have any
such preferred, deferred or other rights or be subject to any such
restrictions as compared with the other or others as the Company has power
to attach to unissued or new shares;
or
|
|
(e)
|
cancel
any shares which, at the date of the passing of the resolution, have not
been taken, or agreed to be taken, by any person, and diminish the amount
of its capital by the amount of the shares so cancelled or, in the case of
shares, without par value, diminish the number of shares into which its
capital is divided.
|
5. The
Board may settle as it considers expedient any difficulty which arises in
relation to any consolidation and division under the last preceding Article and
in particular but without prejudice to the generality of the foregoing may issue
certificates in respect of fractions of shares or arrange for the sale of the
shares representing fractions and the distribution of the net proceeds of sale
(after deduction of the expenses of such sale) in due proportion amongst the
Members who would have been entitled to the fractions, and for this purpose the
Board may authorize some person to transfer the shares representing fractions to
their purchaser or resolve that such net proceeds be paid to the Company for the
Company’s benefit. Such purchaser will not be bound to see to the
application of the purchase money nor will his title to the shares be affected
by any irregularity or invalidity in the proceedings relating to the
sale.
6. The
Company may from time to time by special resolution, subject to any confirmation
or consent required by the Law, reduce its share capital or any capital
redemption reserve or other undistributable reserve in any manner permitted by
law.
7. Except
so far as otherwise provided by the conditions of issue, or by these Articles,
any capital raised by the creation of new shares shall be treated as if it
formed part of the original capital of the Company, and such shares shall be
subject to the provisions contained in these Articles with reference to the
payment of calls and installments, transfer and transmission, forfeiture, lien,
cancellation, surrender, voting and otherwise.
- 6
-
SHARE
RIGHTS
8. (1) Subject
to the provisions of the Law, the rules of the Designated Stock Exchange and the
Memorandum and Articles of Association and to any special rights conferred on
the holders of any shares or class of shares, and without prejudice to Article
12 hereof, any share in the Company (whether forming part of the present capital
or not) may be issued with or have attached thereto such rights or restrictions
whether in regard to dividend, voting, return of capital or otherwise as the
Board may determine, including without limitation on terms that they may be, or
at the option of the Company or the holder are, liable to be redeemed on such
terms and in such manner, including out of capital, as the Board may deem
fit.
(2) Any Initial Members’ Shares that are held in escrow pursuant to the Escrow
Agreement shall be automatically redeemed
or repurchased on pro rata basis to the
extent the Over Allotment Option is not
exercised in full such that the number of Initial Members’ Shares after such
automatic redemption will be equal to 20% of the total number of shares,
including the shares underlying the units offered in the IPO, outstanding after
the IPO and any exercise of the Over Allotment Option.
9. Subject
to the Law, any preferred shares may be issued or converted into shares that, at
a determinable date or at the option of the Company or the holder if so
authorized by its Memorandum of Association, are liable to be redeemed on such
terms and in such manner as the Company before the issue or conversion may by
ordinary resolution of the Members determine. Where the Company
purchases for redemption a redeemable share, purchases not made through the
market or by tender shall be limited to a maximum price as may from time to time
be determined by the Board, either generally or with regard to specific
purchases. If purchases are by tender, tenders shall comply with
applicable laws.
VARIATION OF
RIGHTS
10. Subject
to the Law and without prejudice to Article 8, all or any of the special rights
for the time being attached to the shares or any class of shares may, unless
otherwise provided by the terms of issue of the shares of that class, from time
to time (whether or not the Company is being wound up) be varied, modified or
abrogated with the sanction of a special resolution passed at a separate general
meeting of the holders of the shares of that class. To every such
separate general meeting all the provisions of these Articles relating to
general meetings of the Company shall, mutatis mutandis, apply, but so
that:
|
(a)
|
the
necessary quorum (whether at a separate general meeting or at its
adjourned meeting) shall be a person or persons (or in the case of a
Member being a corporation, its duly authorized representative) together
holding or representing by proxy not less than one-third in nominal value
of the issued shares of that
class;
|
- 7
-
|
(b)
|
every
holder of shares of the class shall be entitled on a poll to one vote for
every such share held by him; and
|
|
(c)
|
any
holder of shares of the class present in person or by proxy or authorized
representative may demand a poll.
|
11. The
special rights conferred upon the holders of any shares or class of shares shall
not, unless otherwise expressly provided in the rights attaching to or the terms
of issue of such shares, be deemed to be varied, modified or abrogated by the
creation or issue of further shares ranking pari passu therewith.
SHARES
12. (1) Subject
to the Law, these Articles and, where applicable, the rules of the Designated
Stock Exchange and without prejudice to any special rights or restrictions for
the time being attached to any shares or any class of shares, the unissued
shares of the Company (whether forming part of the original or any increased
capital) shall be at the disposal of the Board, which may offer, allot, grant
options over or otherwise dispose of them to such persons, at such times and for
such consideration and upon such terms and conditions as the Board may in its
absolute discretion determine but so that no shares shall be issued at a
discount. In particular and without prejudice to the generality of
the foregoing, the Board is hereby empowered to authorize by resolution or
resolutions from time to time the issuance of one or more classes or series of
preferred shares and to fix the designations, powers, preferences and relative,
participating, optional and other rights, if any, and the qualifications,
limitations and restrictions thereof, if any, including, without
limitation, the number of shares constituting each such class or series,
dividend rights, conversion rights, redemption privileges, voting powers, full
or limited or no voting powers, and liquidation preferences, and to increase or
decrease the size of any such class or series (but not below the number of
shares of any class or series of preferred shares then outstanding) to the
extent permitted by Law. Without limiting the generality of the
foregoing, the resolution or resolutions providing for the establishment of any
class or series of preferred shares may, to the extent permitted by law, provide
that such class or series shall be superior to, rank equally with or be junior
to the preferred shares of any other class or series.
(2) Neither
the Company nor the Board shall be obliged, when making or granting any
allotment of, offer of, option over or disposal of shares, to make, or make
available, any such allotment, offer, option or shares to Members or others with
registered addresses in any particular territory or territories being a
territory or territories where, in the absence of a registration statement or
other special formalities, this would or might, in the opinion of the Board, be
unlawful or impracticable. Members affected as a result of the
foregoing sentence shall not be, or be deemed to be, a separate class of members
for any purpose whatsoever. Except as otherwise expressly provided in
the resolution or resolutions providing for the establishment of any class or
series of preferred shares, no vote of the holders of preferred shares of or
ordinary shares shall be a prerequisite to the issuance of any shares of any
class or series of the preferred shares authorized by and complying with the
conditions of the Memorandum and Articles of Association.
- 8
-
(3) The
Board may issue options, warrants or convertible securities or securities of
similar nature conferring the right upon the holders thereof to subscribe for,
purchase or receive any class of shares or securities in the capital of the
Company on such terms as it may from time to time determine.
13. The
Company may in connection with the issue of any shares exercise all powers of
paying commission and brokerage conferred or permitted by the
Law. Subject to the Law, the commission may be satisfied by the
payment of cash or by the allotment of fully or partly paid shares or partly in
one and partly in the other.
14. Except
as required by law, no person shall be recognized by the Company as holding any
share upon any trust and the Company shall not be bound by or required in any
way to recognize (even when having notice thereof) any equitable, contingent,
future or partial interest in any share or any fractional part of a share or
(except only as otherwise provided by these Articles or by law) any other rights
in respect of any share except an absolute right to the entirety thereof in the
registered holder.
15. Subject
to the Law and these Articles, the Board may at any time after the allotment of
shares but before any person has been entered in the Register as the holder,
recognize a renunciation thereof by the allottee in favor of some other person
and may accord to any allottee of a share a right to effect such renunciation
upon and subject to such terms and conditions as the Board considers fit to
impose.
SHARE
CERTIFICATES
16. Shares
of the Company’s stock may be issued in certificated or uncertificated
form. If in certificated form, every share certificate shall be
issued under the Seal or a facsimile thereof and shall specify the number and
class and distinguishing numbers (if any) of the shares to which it relates, and
the amount paid up thereon and may otherwise be in such form as the Directors
may from time to time determine. No certificate shall be issued
representing shares of more than one class. The Board may by
resolution determine, either generally or in any particular case or cases, that
any signatures on any such certificates (or certificates in respect of other
securities) need not be autographic but may be affixed to such certificates by
some mechanical means or may be printed thereon.
17. (1) In
the case of a share held jointly by several persons, the Company shall not be
bound to issue more than one certificate therefor and delivery of a certificate
to one of several joint holders shall be sufficient delivery to all such
holders.
(2) Where
a share stands in the names of two or more persons, the person first named in
the Register shall as regards service of notices and, subject to the provisions
of these Articles, all or any other matters connected with the Company, except
the transfer of the shares, be deemed the sole holder thereof.
18. (1)
Every person whose name is entered, upon an allotment of shares, as a Member in
the Register shall be entitled, without payment, to receive one certificate, for
all such shares of any one class or several certificates each for one or more of
such shares of such class upon payment for every certificate after the first of
such reasonable out-of-pocket expenses as the Board from time to time
determines.
(2) Notwithstanding any other provision in these Articles, the Company may
issue
shares in uncertificated or scripless form, and provide for the recordation and
transfer of its shares by electronic or other means not involving any issuance
of certificates, including provisions for notice to purchasers in substitution
for any required statements on certificates, and as may be required by
applicable laws. [Any system so adopted shall not become effective as
to issued and outstanding certificated securities until the certificates
therefor have been surrendered to the Company.] Where the Company
issues shares in uncertificated or scripless form, the Company shall upon the
issue of such shares enter the name of the subscriber or its nominee in the
register of members of the Company and may deliver such shares in uncertificated
or scripless form by any method of transferring or dealing in securities
introduced by the Designated Stock Exchange or any relevant clearing house, or
operated in accordance with the rules of any competent regulatory authority and
which have been approved by the Board for such purpose.
- 9
-
19. Share
certificates, if issued, shall be issued within the relevant time limit as
prescribed by the Law or as the Designated Stock Exchange may from time to time
determine, whichever is the shorter, after allotment or, except in the case of a
transfer which the Company is for the time being entitled to refuse to register
and does not register, after lodgment of a transfer with the
Company.
20. (1) Upon
every transfer of shares the certificate held by the transferor (if any) shall
be given up to be cancelled, and shall forthwith be cancelled accordingly, and a
new certificate may be issued to the transferee in respect of the shares
transferred to him at such fee as is provided in paragraph (2) of this
Article. If any of the shares included in the certificate so given up
shall be retained by the transferor a new certificate for the balance may be
issued to him at the aforesaid fee payable by the transferor to the Company in
respect thereof.
(2) The
fee referred to in paragraph (1) above shall be an amount not exceeding the
relevant maximum amount as the Designated Stock Exchange may from time to time
determine provided that the Board may at any time determine a lower amount for
such fee.
21. If
a share certificate shall be damaged or defaced or alleged to have been lost,
stolen or destroyed a new certificate representing the same shares may be issued
to the relevant Member upon request and on payment of such fee as the Company
may determine and, subject to compliance with such terms (if any) as to evidence
and indemnity and to payment of the costs and reasonable out-of-pocket expenses
of the Company in investigating such evidence and preparing such indemnity as
the Board may think fit and, in case of damage or defacement, on delivery of the
old certificate to the Company provided always that where share warrants have
been issued, no new share warrant shall be issued to replace one that has been
lost unless the Board has determined that the original has been
destroyed.
LIEN
22. The
Company shall have a first and paramount lien on every share (not being a fully
paid share) for all moneys (whether presently payable or not) called or payable
at a fixed time in respect of that share. The Company shall also have
a first and paramount lien on every share (not being a fully paid share)
registered in the name of a Member (whether or not jointly with other Members)
for all amounts of money presently payable by such Member or his estate to the
Company whether the same shall have been incurred before or after notice to the
Company of any equitable or other interest of any person other than such member,
and whether the period 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 or other moneys payable thereon or in respect
thereof. The Board may at any time, generally or in any particular
case, waive any lien that has arisen or declare any share exempt in whole or in
part, from the provisions of this Article.
23. Subject
to these Articles, the Company may sell in such manner as the Board determines
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, or the liability
or engagement in respect of which such lien exists is liable to be presently
fulfilled or discharged nor until the expiration of fourteen (14) clear days
after a notice in writing, stating and demanding payment of the sum presently
payable, or specifying the liability or engagement and demanding fulfillment or
discharge thereof and giving notice of the intention to sell in default, has
been served on the registered holder for the time being of the share or the
person entitled thereto by reason of his death or bankruptcy.
- 10
-
24. The
net proceeds of the sale shall be received by the Company and applied in or
towards payment or discharge of the debt or liability 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 person entitled to the
share at the time of the sale. To give effect to any such sale the
Board may authorize some person to transfer the shares sold to the purchaser
thereof. The purchaser shall be registered as the holder of the
shares so transferred and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings relating to the sale.
CALLS ON
SHARES
25. Subject
to these Articles and to the terms of allotment, the Board may from time to time
make calls upon the Members in respect of any moneys unpaid on their shares
(whether on account of the nominal value of the shares or by way of premium),
and each Member shall (subject to being given at least fourteen (14) clear days’
Notice specifying the time and place of payment) pay to the Company as required
by such notice the amount called on his shares. A call may be
extended, postponed or revoked in whole or in part as the Board determines but
no member shall be entitled to any such extension, postponement or revocation
except as a matter of grace and favor.
26. A
call shall be deemed to have been made at the time when the resolution of the
Board authorizing the call was passed and may be made payable either in one lump
sum or by installments.
27. A
person upon whom a call is made shall remain liable for calls made upon him
notwithstanding the subsequent transfer of the shares in respect of which the
call was made. The joint holders of a share shall be jointly and
severally liable to pay all calls and installments due in respect thereof or
other moneys due in respect thereof.
28. 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 amount unpaid from the day appointed for payment thereof to the time of
actual payment at such rate (not exceeding twenty percent (20%) per annum) as
the Board may determine, but the Board may in its absolute discretion waive
payment of such interest wholly or in part.
29. No
Member shall be entitled to receive any dividend or bonus or to be present and
vote (save as proxy for another Member) at any general meeting either personally
or by proxy, or be reckoned in a quorum, or exercise any other privilege as a
Member until all calls or installments due by him to the Company, whether alone
or jointly with any other person, together with interest and expenses (if any)
shall have been paid.
- 11
-
30. On
the trial or hearing of any action or other proceedings for the recovery of any
money due for any call, it shall be sufficient to prove that the name of the
Member sued is entered in the Register as the holder, or one of the holders, of
the shares in respect of which such debt accrued, that the resolution making the
call is duly recorded in the minute book, and that notice of such call was duly
given to the Member sued, in pursuance of these Articles; and it shall not be
necessary to prove the appointment of the Directors who made such call, nor any
other matters whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
31. Any
amount payable in respect of a share upon allotment or at any fixed date,
whether in respect of nominal value or premium or as an installment of a call,
shall be deemed to be a call duly made and payable on the date fixed for payment
and if it is not paid the provisions of these Articles shall apply as if that
amount had become due and payable by virtue of a call duly made and
notified.
32. On
the issue of shares the Board may differentiate between the allottees or holders
as to the amount of calls to be paid and the times of payment.
33. The
Board may, if it thinks fit, receive from any Member willing to advance the
same, and either in money or money’s worth, all or any part of the moneys
uncalled and unpaid or installments payable upon any shares held by him and upon
all or any of the moneys so advanced (until the same would, but for such
advance, become presently payable) pay interest at such rate (if any) as the
Board may decide. The Board may at any time repay the amount so
advanced upon giving to such Member not less than one month’s Notice of its
intention in that behalf, unless before the expiration of such notice the amount
so advanced shall have been called up on the shares in respect of which it was
advanced. Such payment in advance shall not entitle the holder of
such share or shares to participate in respect thereof in a dividend
subsequently declared.
FORFEITURE OF
SHARES
34. (1) If
a call remains unpaid after it has become due and payable the Board may give to
the person from whom it is due not less than fourteen (14) clear days’
Notice:
|
(a)
|
requiring
payment of the amount unpaid together with any interest which may have
accrued and which may still accrue up to the date of actual payment;
and
|
|
(b)
|
stating
that if the Notice is not complied with the shares on which the call was
made will be liable to be
forfeited.
|
(2) If
the requirements of any such Notice are not complied with, any share in respect
of which such Notice has been given may at any time thereafter, before payment
of all calls and interest due in respect thereof has been made, be forfeited by
a resolution of the Board to that effect, and such forfeiture shall include all
dividends and bonuses declared in respect of the forfeited share but not
actually paid before the forfeiture.
35. When
any share has been forfeited, notice of the forfeiture shall be served upon the
person who was before forfeiture the holder of the share. No
forfeiture shall be invalidated by any omission or neglect to give such
Notice.
- 12
-
36. The
Board may accept the surrender of any share liable to be forfeited hereunder
and, in such case, references in these Articles to forfeiture will include
surrender.
37. Any
share so forfeited shall be deemed the property of the Company and may be sold,
re-allotted or otherwise disposed of to such person, upon such terms and in such
manner as the Board determines, and at any time before a sale, re-allotment or
disposition the forfeiture may be annulled by the Board on such terms as the
Board determines.
38. A
person whose shares have been forfeited shall cease to be a Member in respect of
the forfeited shares but nevertheless shall remain liable to pay the Company all
moneys which at the date of forfeiture were presently payable by him to the
Company in respect of the shares, with (if the Directors shall in their
discretion so require) interest thereon from the date of forfeiture until
payment at such rate (not exceeding twenty percent (20%) per annum) as the Board
determines. The Board may enforce payment thereof if it thinks fit,
and without any deduction or allowance for the value of the forfeited shares, at
the date of forfeiture, but his liability shall cease if and when the Company
shall have received payment in full of all such moneys in respect of the
shares. For the purposes of this Article any sum which, by the terms
of issue of a share, is payable thereon at a fixed time which is subsequent to
the date of forfeiture, whether on account of the nominal value of the share or
by way of premium, shall notwithstanding that time has not yet arrived be deemed
to be payable at the date of forfeiture, and the same shall become due and
payable immediately upon the forfeiture, but interest thereon shall only be
payable in respect of any period between the said fixed time and the date of
actual payment.
39. A
declaration by a Director or the Secretary that a share has been forfeited on a
specified date shall be conclusive evidence of the facts therein stated as
against all persons claiming to be entitled to the share, and such declaration
shall (subject to the execution of an instrument of transfer by the Company if
necessary) constitute a good title to the share, and the person to whom the
share is disposed of shall be registered as the holder of the share and shall
not be bound to see to the application of the consideration (if any), nor shall
his title to the share be affected by any irregularity in or invalidity of the
proceedings in reference to the forfeiture, sale or disposal of the
share. When any share shall have been forfeited, notice of the
declaration shall be given to the Member in whose name it stood immediately
prior to the forfeiture, and an entry of the forfeiture, with the date thereof,
shall forthwith be made in the register, but no forfeiture shall be in any
manner invalidated by any omission or neglect to give such notice or make any
such entry.
40. Notwithstanding
any such forfeiture as aforesaid the Board may at any time, before any shares so
forfeited shall have been sold, re-allotted or otherwise disposed of, permit the
shares forfeited to be bought back upon the terms of payment of all calls and
interest due upon and expenses incurred in respect of the share, and upon such
further terms (if any) as it thinks fit.
41. The
forfeiture of a share shall not prejudice the right of the Company to any call
already made or installment payable thereon.
42. The
provisions of these Articles as to forfeiture shall apply in the case of
non-payment of any sum which, by the terms of issue of a share, becomes payable
at a fixed time, whether on account of the nominal value of the share or by way
of premium, as if the same had been payable by virtue of a call duly made and
notified.
- 13
-
REGISTER OF
MEMBERS
43. (1) The
Company shall keep in one or more books a Register of its Members and shall
enter therein the following particulars, that is to say:
|
(a)
|
the
name and address of each Member, the number and class of shares held by
him and the amount paid or agreed to be considered as paid on such
shares;
|
|
(b)
|
the
date on which each person was entered in the Register;
and
|
|
(c)
|
the
date on which any person ceased to be a
Member.
|
(2) The
Company may keep an overseas or local or other branch register of Members
resident in any place, and the Board may make and vary such regulations as it
determines in respect of the keeping of any such register and maintaining a
Registration Office in connection therewith.
44. The
Register and branch register of Members, as the case may be, shall be open to
inspection for such times and on such days as the Board shall determine by
Members without charge or by any other person, upon a maximum payment of $2.50
or such other sum specified by the Board, at the Office or such other place at
which the Register is kept in accordance with the Law or, if appropriate, upon a
maximum payment of $1.00 or such other sum specified by the Board at the
Registration Office. The Register including any overseas or local or
other branch register of Members may, after notice has been given by
advertisement in an appointed newspaper or any other newspapers in accordance
with the requirements of the Designated Stock Exchange or by any electronic
means in such manner as may be accepted by the Designated Stock Exchange to that
effect, be closed at such times or for such periods not exceeding in the whole
thirty (30) days in each year as the Board may determine and either generally or
in respect of any class of shares.
RECORD
DATES
45. For
the purpose of determining the Members entitled to notice of or to vote at any
general meeting, or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or for the purpose of any other lawful action, the Board may fix, in advance, a
date as the record date for any such determination of Members, which date shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other such
action.
- 14
-
If the
Board does not fix a record date for any general meeting, the record date for
determining the Members entitled to a notice of or to vote at such meeting shall
be at the close of business on the day next preceding the day on which notice is
given, or, if in accordance with these Articles notice is waived, at the close
of business on the day next preceding the day on which the meeting is
held. If corporate action without a general meeting is to be taken,
the record date for determining the Members entitled to express consent to such
corporate action in writing, when no prior action by the Board is necessary,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Company by delivery to
its head office. The record date for determining the Members for any
other purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
A
determination of the Members of record entitled to notice of or to vote at a
meeting of the Members shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned
meeting.
TRANSFER OF
SHARES
46. (1)
Subject to these Articles, any Member may transfer all or any of his shares by
an instrument of transfer in the usual or common form or in a form prescribed by
the Designated Stock Exchange or in any other form approved by the Board and may
be under hand or, if the transferor or transferee is a clearing house or its
nominee(s), by hand or by machine imprinted signature or by such other manner of
execution as the Board may approve from time to time.
(2) All transfers of shares which are in uncertificated or
scripless
form may
be effected without any instrument of transfer in writing and by any method of
transferring or dealing in securities introduced by the Designated Stock
Exchange or any relevant clearing house, or operated in accordance with the
rules of any competent regulatory authority and which have been approved by the
Board for such purpose.
47. Any
instrument of transfer shall be executed by or on behalf of the transferor and
the transferee provided that the Board may dispense with the execution of the
instrument of transfer by the transferee in any case which it thinks fit in its
discretion to do so. Without prejudice to the last preceding Article,
the Board may also resolve, either generally or in any particular case, upon
request by either the transferor or transferee, to accept mechanically executed
transfers. The transferor shall be deemed to remain the holder of the
share until the name of the transferee is entered in the Register in respect
thereof. Nothing in these Articles shall preclude the Board from
recognizing a renunciation of the allotment or provisional allotment of any
share by the allottee in favor of some other person.
48. (1) The
Board may, in its absolute discretion, and without giving any reason therefor,
refuse to register a transfer of any share (not being a fully paid up share) to
a person of whom it does not approve, or any share issued under any share
incentive scheme for employees upon which a restriction on transfer imposed
thereby still subsists, and it may also, without prejudice to the foregoing
generality, refuse to register a transfer of any share to more than four joint
holders or a transfer of any share (not being a fully paid up share) on which
the Company has a lien.
(2) The
Board in so far as permitted by any applicable law may, in its absolute
discretion, at any time and from time to time transfer any share upon the
Register to any branch register or any share on any branch register to the
Register or any other branch register. In the event of any such
transfer, the shareholder requesting such transfer shall bear the cost of
effecting the transfer unless the Board otherwise determines.
(3) Unless
the Board otherwise agrees (which agreement may be on such terms and subject to
such conditions as the Board in its absolute discretion may from time to time
determine, and which agreement the Board shall, without giving any reason
therefor, be entitled in its absolute discretion to give or withhold), no shares
upon the Register shall be transferred to any branch register nor shall shares
on any branch register be transferred to the Register or any other branch
register and all transfers and other documents of title shall be lodged for
registration, and registered, in the case of any shares on a branch register, at
the relevant Registration Office, and, in the case of any shares on the
Register, at the Office or such other place at which the Register is kept in
accordance with the Law.
- 15
-
49. Without
limiting the generality of the last preceding Article, the Board may decline to
recognize any instrument of transfer unless:-
|
(a)
|
a
fee of such maximum sum as the Designated Stock Exchange may determine to
be payable or such lesser sum as the Board may from time to time require
is paid to the Company in respect
thereof;
|
|
(b)
|
the
instrument of transfer is in respect of only one class of
share;
|
|
(c)
|
the
instrument of transfer is lodged at the Office or such other place at
which the Register is kept in accordance with the Law or the Registration
Office (as the case may be) accompanied by the relevant share
certificate(s), if so issued, and such other evidence as the Board may
reasonably require to show the right of the transferor to make the
transfer (and, if the instrument of transfer is executed by some other
person on his behalf, the authority of that person so to do);
and
|
|
(d)
|
if
applicable, the instrument of transfer is duly and properly
stamped.
|
50. If
the Board refuses to register a transfer of any share, it shall, within two
months after the date on which the transfer was lodged with the Company, send to
each of the transferor and transferee notice of the refusal.
51. The
registration of transfers of shares or of any class of shares may, after notice
has been given by advertisement in an appointed newspaper or any other
newspapers or by any other means in accordance with the requirements of the
Designated Stock Exchange to that effect be suspended at such times and for such
periods (not exceeding in the whole thirty (30) days in any year) as the Board
may determine.
TRANSMISSION OF
SHARES
52. If
a Member dies, the survivor or survivors where the deceased was a joint holder,
and his legal personal representatives where he was a sole or only surviving
holder, will be the only persons recognized by the Company as having any title
to his interest in the shares; but nothing in this Article will release the
estate of a deceased Member (whether sole or joint) from any liability in
respect of any share which had been solely or jointly held by him.
53. Any
person becoming entitled to a share in consequence of the death or bankruptcy or
winding-up of a Member may, upon such evidence as to his title being produced as
may be required by the Board, elect either to become the holder of the share or
to have some person nominated by him registered as the transferee
thereof. If he elects to become the holder he shall notify the
Company in writing either at the Registration Office or Office, as the case may
be, to that effect. If he elects to have another person registered he
shall execute a transfer of the share in favor of that person. The
provisions of these Articles relating to the transfer and registration of
transfers of shares shall apply to such notice or transfer as aforesaid as if
the death or bankruptcy of the Member had not occurred and the notice or
transfer were a transfer signed by such Member.
- 16
-
54. A
person becoming entitled to a share by reason of the death or bankruptcy or
winding-up of a Member shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered holder of the
share. However, the Board may, if it thinks fit, withhold the payment
of any dividend payable or other advantages in respect of such share until such
person shall become the registered holder of the share or shall have effectually
transferred such share, but, subject to the requirements of Article 75(2) being
met, such a person may vote at meetings.
UNTRACEABLE
MEMBERS
55. (1) Without
prejudice to the rights of the Company under paragraph (2) of this Article, the
Company may cease sending checks for dividend entitlements or dividend warrants
by post if such checks or warrants have been left uncashed on two consecutive
occasions. However, the Company may exercise the power to cease
sending checks for dividend entitlements or dividend warrants after the first
occasion on which such a check or warrant is returned undelivered.
(2) The
Company shall have the power to sell, in such manner as the Board thinks fit,
any shares of a Member who is untraceable, but no such sale shall be made
unless:
|
(a)
|
all
checks or warrants in respect of dividends of the shares in question,
being not less than three in total number, for any sum payable in cash to
the holder of such shares in respect of them sent during the relevant
period in the manner authorized by the Articles of the Company have
remained uncashed;
|
|
(b)
|
so
far as it is aware at the end of the relevant period, the Company has not
at any time during the relevant period received any indication of the
existence of the Member who is the holder of such shares or of a person
entitled to such shares by death, bankruptcy or operation of law;
and
|
|
(c)
|
the
Company, if so required by the rules governing the listing of shares on
the Designated Stock Exchange, has given notice to, and caused
advertisement in newspapers to be made in accordance with the requirements
of, the Designated Stock Exchange of its intention to sell such shares in
the manner required by the Designated Stock Exchange, and a period of
three months or such shorter period as may be allowed by the Designated
Stock Exchange has elapsed since the date of such
advertisement.
|
For the
purpose of the foregoing, the “relevant period” means the period commencing
twelve (12) years before the date of publication of the advertisement referred
to in paragraph (c) of this Article and ending at the expiry of the period
referred to in that paragraph.
- 17
-
(3) To
give effect to any such sale the Board may authorize some person to transfer the
said shares and an instrument of transfer signed or otherwise executed by or on
behalf of such person shall be as effective as if it had been executed by the
registered holder or the person entitled by transmission to such shares, and the
purchaser shall not be bound to see to the application of the purchase money nor
shall his title to the shares be affected by any irregularity or invalidity in
the proceedings relating to the sale. The net proceeds of the sale
will belong to the Company and upon receipt by the Company of such net proceeds
it shall become indebted to the former Member for an amount equal to such net
proceeds. No trust shall be created in respect of such debt and no
interest shall be payable in respect of it and the Company shall not be required
to account for any money earned from the net proceeds which may be employed in
the business of the Company or as it thinks fit. Any sale under this
Article shall be valid and effective notwithstanding that the Member holding the
shares sold is dead, bankrupt or otherwise under any legal disability or
incapacity.
GENERAL
MEETINGS
56. The
Board may convene an annual general meeting of the Company at such time and
place as may be determined by the Board.
57. Each
general meeting, other than an annual general meeting, shall be
called an extraordinary general meeting. General meetings
may be held at such times and in any location in the world as may be determined
by the Chairman or any two Directors.
58. Only
the Chairman or two Directors or a Director and the Secretary or the Board may
call extraordinary general meetings, which extraordinary general meetings shall
be held at such times and locations (as permitted hereby) as such person or
persons shall determine.
NOTICE OF GENERAL
MEETINGS
59. An
annual general meeting and any extraordinary general meeting may be called by
not less than ten (10) clear days’ Notice but a general meeting may be called by
shorter notice, subject to the Law, if it is so agreed:
|
(a)
|
in
the case of a meeting called as an annual general meeting, by all the
Members entitled to attend and vote thereat;
and
|
|
(b)
|
in
the case of any other meeting, by a majority in number of the Members
having the right to attend and vote at the meeting, being a majority
together holding not less than seventy-five percent (75%) in nominal value
of the issued shares giving that
right.
|
60. The
notice shall specify the time and place of the meeting and, in case of special
business, the general nature of the business. The notice convening an
annual general meeting shall specify the meeting as such. Notice of
every general meeting shall be given to all Members other than to such Members
as, under the provisions of these Articles or the terms of issue of the shares
they hold, are not entitled to receive such notices from the Company, to all
persons entitled to a share in consequence of the death or bankruptcy or
winding-up of a Member and to each of the Directors and the
Auditors.
- 18
-
61. Members
may seek to bring business (other than the nomination of candidates for election
as directors) before an annual general meeting, provided they must provide
timely notice of their intent in writing to the Company. To be timely, a
Member’s notice will need to be delivered to the principal executive offices of
the Company not later than the close of business on the 90th day nor earlier
than the close of business on the 120th day prior to the first anniversary of
the preceding year’s annual general meeting. For the first annual general
meeting after the closing of the IPO (as defined in Article 156), a Member’s
notice shall be timely if delivered to the principal executive offices of the
Company not later than the 90th day prior to the scheduled date of the annual
general meeting or the 10th day following the day on which public announcement
or Notice of the date of the annual general meeting is first made or sent by the
Company.
62. The
accidental omission to give Notice of a meeting or (in cases where instruments
of proxy are sent out with the Notice) to send such instrument of proxy to, or
the non-receipt of such Notice or such instrument of proxy by, any person
entitled to receive such Notice shall not invalidate any resolution passed or
the proceedings at that meeting.
PROCEEDINGS AT GENERAL
MEETINGS
63. (1) All
business shall be deemed special that is transacted at an extraordinary general
meeting, and also all business that is transacted at an annual general meeting,
with the exception of:
|
(a)
|
the
declaration and sanctioning
of dividends;
|
|
(b)
|
consideration
and adoption of the accounts and balance sheet and the reports of the
Directors and Auditors and other documents required to be annexed to the
balance sheet;
|
|
(c)
|
the
election of Directors;
|
|
(d)
|
appointment
of Auditors (where special notice of the intention for such appointment is
not required by the Law) and other
officers;
|
|
(e)
|
the
fixing of the remuneration of the Auditors, and the voting of remuneration
or extra remuneration to the
Directors;
|
|
(f)
|
the
granting of any mandate or authority to the Directors to offer, allot,
grant options over or otherwise dispose of the unissued shares in the
capital of the Company representing not more than 20 percent (20%) in
nominal value of its existing issued share capital;
and
|
|
(g)
|
the
granting of any mandate or authority to the Directors to repurchase
securities of the Company.
|
- 19
-
(2) No
business other than the appointment of a chairman of a meeting shall be
transacted at any general meeting unless a quorum is present at the commencement
of the business. At any general meeting of the Company, any Member(s)
entitled to vote and present in person or by proxy, or (in the case of a Member
being a corporation) by its duly authorized representative, representing not
less than one-third in nominal value of the total issued voting shares in the
Company throughout the meeting shall form a quorum for all
purposes.
64. If
within thirty (30) minutes (or such longer time not exceeding one hour as the
chairman of the meeting may determine to wait) after the time appointed for the
meeting a quorum is not present, the meeting shall stand adjourned to the same
day in the next week at the same time and place or to such time and place as the
Board may determine. If at such adjourned meeting a quorum is not
present within half an hour from the time appointed for holding the meeting, the
meeting shall be dissolved.
65. The
chairman of the Company shall preside as chairman at every general
meeting. If at any meeting the chairman is not present within fifteen
(15) minutes after the time appointed for holding the meeting, or is not willing
to act as chairman, the Directors present shall choose one of their number to
act, or if one Director only is present he shall preside as chairman if willing
to act. If no Director is present, or if each of the Directors
present declines to take the chair, or if the chairman chosen shall retire from
the chair, the Members present in person or by proxy and entitled to vote shall
elect one of their number to be chairman.
66. The
chairman may 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
which might lawfully have been transacted at the meeting had the adjournment not
taken place. When a meeting is adjourned for fourteen (14) days or more, at
least seven (7) clear days’ notice of the adjourned meeting shall be given
specifying the time and place of the adjourned meeting but it shall not be
necessary to specify in such notice the nature of the business to be transacted
at the adjourned meeting and the general nature of the business to be
transacted. Save as aforesaid, it shall be unnecessary to give notice
of an adjournment.
67. If
an amendment is proposed to any resolution under consideration but is in good
faith ruled out of order by the chairman of the meeting, the proceedings on the
substantive resolution shall not be invalidated by any error in such
ruling. In the case of a resolution duly proposed as a special
resolution, no amendment thereto (other than a mere clerical amendment to
correct a patent error) may in any event be considered or voted
upon.
VOTING
68. Subject
to any special rights or restrictions as to voting for the time being attached
to any shares by or in accordance with these Articles (including without
limitation Article 156 in respect of a Business Combination), at any general
meeting on a poll every Member present in person or by proxy or, in the case of
a Member being a corporation, by its duly authorized representative shall have
one vote for every fully paid share of which he is the holder but so that no
amount paid up or credited as paid up on a share in advance of calls or
installments is treated for the foregoing purposes as paid up on the
share. A resolution put to the vote of a meeting shall be decided on
a poll.
- 20
-
69. The
result of the poll shall be deemed to be the resolution of the meeting at which
the poll was taken. The Company shall only be required to disclose
the voting figures on a poll if such disclosure is required by laws or rules
applicable to the Company.
70. On
a poll votes may be given either personally or by proxy.
71. A
person entitled to more than one vote on a poll need not use all his votes or
cast all the votes he uses in the same way.
72. All
questions submitted to a meeting shall be decided by a simple majority of votes
except where a greater majority is required by these Articles or by the Law. In
the case of an equality of votes the chairman of such meeting shall not be
entitled to a second or casting vote and the resolution shall fail.
73. Where
there are joint holders of any share any one of such joint holder may vote,
either in person or by proxy, in respect of such share as if he were solely
entitled thereto, but if more than one of such joint holders be present at any
meeting the vote of the senior who tenders a vote, whether in person or by
proxy, shall be accepted to the exclusion of the votes of the other joint
holders, and for this purpose seniority shall be determined by the order in
which the names stand in the Register in respect of the joint
holding. Several executors or administrators of a deceased Member in
whose name any share stands shall for the purposes of this Article be deemed
joint holders thereof.
74 A
Member who is a patient for any purpose relating to mental health or in respect
of whom an order has been made by any court having jurisdiction for the
protection or management of the affairs of persons incapable of managing their
own affairs may vote by his receiver, committee, curator bonis or other person
in the nature of a receiver, committee or curator bonis appointed by such court,
and such receiver, committee, curator bonis or other person may vote on a poll
by proxy, and may otherwise act and be treated as if he were the registered
holder of such shares for the purposes of general meetings, provided that such
evidence as the Board may require of the authority of the person claiming to
vote shall have been deposited at the Office, head office or Registration
Office, as appropriate, not less than forty-eight (48) hours before the time
appointed for holding the meeting, or adjourned meeting or poll, as the case may
be.
75. Any
person entitled under Article 53 to be registered as the holder of any shares
may vote at any general meeting in respect thereof in the same manner as if he
were the registered holder of such shares, provided that forty-eight (48) hours
at least before the time of the
holding of the meeting or adjourned meeting, as the case may be, at which he
proposes to vote, he shall satisfy the Board of his entitlement to such shares,
or the Board shall have previously admitted his right to vote at such meeting in
respect thereof.
76. No
Member shall, unless the Board otherwise determines, be entitled to attend and
vote and to be reckoned in a quorum at any general meeting unless he is duly
registered and all calls or other sums presently payable by him in respect of
shares in the Company have been paid.
77. If:
|
(a)
|
any
objection shall be raised to the qualification of any voter;
or
|
- 21
-
|
(b)
|
any
votes have been counted which ought not to have been counted or which
might have been rejected; or
|
|
(c)
|
any
votes are not counted which ought to have been
counted,
|
then the
objection or error shall not vitiate the decision of the meeting or adjourned
meeting on any resolution unless the same is raised or pointed out at the
meeting or, as the case may be, the adjourned meeting at which the vote objected
to is given or tendered or at which the error occurs. Any objection
or error shall be referred to the chairman of the meeting and shall only vitiate
the decision of the meeting on any resolution if the chairman decides that the
same may have affected the decision of the meeting. The decision of
the chairman on such matters shall be final and conclusive.
PROXIES
78. Any
Member entitled to attend and vote at a meeting of the Company shall be entitled
to appoint another person as his proxy to attend and vote instead of
him. A Member who is the holder of two or more shares may appoint
more than one proxy to represent him and vote on his behalf at a general meeting
of the Company or at a class meeting. A proxy need not be a
Member. In addition, a proxy or proxies representing either a Member
who is an individual or a Member which is a corporation shall be entitled to
exercise the same powers on behalf of the Member which he or they represent as
such Member could exercise.
79. The
instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney duly authorized in writing or, if the appointor is
a corporation, either under its seal or under the hand of an officer, attorney
or other person authorized to sign the same. In the case of an
instrument of proxy purporting to be signed on behalf of a corporation by an
officer thereof it shall be assumed, unless the contrary appears, that such
officer was duly authorized to sign such instrument of proxy on behalf of the
corporation without further evidence of the facts.
80. The
instrument appointing a proxy and (if required by the Board) the power of
attorney or other authority (if any) under which it is signed, or a certified
copy of such power or authority, shall be delivered to such place or one of such
places (if any) as may be specified for that purpose in or by way of note to or
in any document accompanying the notice convening the meeting (or, if no place
is so specified at the Registration Office or the Office, as may be appropriate)
not less than forty-eight (48) hours before the time appointed for holding the
meeting or adjourned meeting at which the person named in the instrument
proposes to vote. No instrument appointing a proxy shall be valid
after the expiration of twelve (12) months from the date named in it as the date
of its execution, except at an adjourned meeting in cases where the meeting was
originally held within twelve (12) months from such date. Delivery of
an instrument appointing a proxy shall not preclude a Member from attending and
voting in person at the meeting convened and in such event, the instrument
appointing a proxy shall be deemed to be revoked.
81. Instruments
of proxy shall be in any common form or in such other form as the Board may
approve (provided that this shall not preclude the use of the two-way form) and
the Board may, if it thinks fit, send out with the notice of any meeting forms
of instrument of proxy for use at the meeting. The instrument of
proxy shall be deemed to confer authority to vote on any amendment of a
resolution put to the meeting for which it is given as the proxy thinks
fit. The instrument of proxy shall, unless the contrary is stated
therein, be valid as well for any adjournment of the meeting as for the meeting
to which it relates.
- 22
-
82. A
vote given in accordance with the terms of an instrument of proxy shall be valid
notwithstanding the previous death or insanity of the principal, or revocation
of the instrument of proxy or of the authority under which it was executed,
provided that no intimation in writing of such death, insanity or revocation
shall have been received by the Company at the Office or the Registration Office
(or such other place as may be specified for the delivery of instruments of
proxy in the notice convening the meeting or other document sent therewith) two
hours at least before the commencement of the meeting or adjourned meeting, at
which the instrument of proxy is used.
83. Anything
which under these Articles a Member may do by proxy he may likewise do by his
duly appointed attorney and the provisions of these Articles relating to proxies
and instruments appointing proxies shall apply mutatis mutandis in relation to
any such attorney and the instrument under which such attorney is
appointed.
CORPORATIONS ACTING BY
REPRESENTATIVES
84. (1) Any
corporation which is a Member 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 at any meeting of any class of
Members. The person so authorized shall be entitled to exercise the
same powers on behalf of such corporation as the corporation could exercise if
it were an individual Member and such corporation shall for the purposes of
these Articles be deemed to be present in person at any such meeting if a person
so authorized is present thereat.
(2) If
a clearing house (or its nominee(s)), being a corporation, is a Member, it may
authorize such persons as it thinks fit to act as its representatives at any
meeting of the Company or at any meeting of any class of Members provided that
the authorization shall specify the number and class of shares in respect of
which each such representative is so authorized. Each person so
authorized under the provisions of this Article shall be deemed to have been
duly authorized without further evidence of the facts and be entitled to
exercise the same rights and powers on behalf of the clearing house (or its
nominee(s)) as if such person was the registered holder of the shares of the
Company held by the clearing house (or its nominee(s)).
(3) Any
reference in these Articles to a duly authorized representative of a Member
being a corporation shall mean a representative authorized under the provisions
of this Article.
- 23
-
ACTION BY WRITTEN
RESOLUTIONS OF MEMBERS
85
. Any
action required or permitted to be taken at any annual or extraordinary general
meetings of the Company may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding shares, in the case of an
ordinary resolution, having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and in the case of a special
resolution, by all holders of outstanding shares, and shall be delivered to the
Company by delivery to its principal place of business or an officer
or agent of the Company having custody of the book in which proceedings of
general meetings are recorded.
BOARD OF
DIRECTORS
86. (1) Unless
otherwise determined by the Company in general meeting, the number of Directors
shall not be less than two (2). There shall be no maximum number of
Directors unless otherwise determined from time to time by the
Directors. The Directors shall be elected or appointed in the first
place by the subscribers to the Memorandum of Association or by a majority of
them and thereafter in accordance with this Article and shall hold office for
such term as the Members may determine or, in the absence of such determination,
in accordance with this Article or until their successors are elected or
appointed or their office is otherwise vacated.
(2)
The
Board of Directors shall be divided into three classes: Class A, Class B and
Class C. Each class shall consist of as nearly equal numbers of directors as
possible and designated Class A, Class B, and Class C. The term of office of
Class A shall expire at the first annual meeting of Members following the
effectiveness of these Articles, and each third annual meeting of Members
thereafter; the term of office of Class B shall expire at the second
annual meeting of Members following the effectiveness of these Articles, and
each third annual meeting of Members thereafter; and the term of office of Class
C shall expire at the third annual meeting of Members following the
effectiveness of these Articles, and each third annual meeting of Members
thereafter. As soon as practicable following the effectiveness of these
Articles, the Directors then in office shall by resolution of the Board of
Directors select which of such Directors shall be Class A Directors, Class B
Directors and Class C Directors. Directors added to the board of directors
between annual meetings of Members by reason of an increase in the authorized
number of directors shall belong to the class designated by the Board of
Directors; provided however that the number of board seats designated to belong
to Class A, Class B and Class C must be as nearly equal in number as possible.
There shall be no shareholding qualification for Directors unless prescribed by
special resolution.
(3) Commencing
at the first annual meeting of Members following the effectiveness of these
Articles, and at each annual meeting thereafter, directors elected to succeed
those directors whose terms expire thereat shall be elected for a term of office
to expire at the third succeeding annual general meeting after their
election.
(4) The
Directors shall have the power from time to time and at any time to appoint any
person as a Director to fill a casual vacancy on the Board or as an addition to
the existing Board. Any Director so appointed by the Board shall hold
office only until the annual general meeting of the Company at which the other
Directors of the same class are to expire and shall then be eligible for
re-election.
- 24
-
(5) No
Director shall be required to hold any shares of the Company by way of
qualification and a Director who is not a Member shall be entitled to receive
notice of and to attend and speak at any general meeting of the Company and of
all classes of shares of the Company.
(6) Subject
to any provision to the contrary in these Articles, a Director may be removed by
way of (i) a special resolution of the Members at any time before the expiration
of his period of office notwithstanding anything in these Articles or in any
agreement between the Company and such Director (but without prejudice to any
claim for damages under any such agreement), or (ii) a two-thirds vote of the
Board of Directors if such removal is for cause at any time before the
expiration of his period of office notwithstanding anything in these Articles or
in any agreement between the Company and such Director (but without prejudice to
any claim for damages under any such agreement).
(7) A
vacancy on the Board created by the removal of a Director under the provisions
of subparagraph (6) above may be filled by the election or appointment by
special resolution of the Members at the meeting at which such Director is
removed or by the affirmative vote of a simple majority of the remaining
Directors present and voting at a Board meeting.
(8) The
Company may from time to time in general meeting by ordinary resolution increase
or reduce the number of Directors but so that the number of Directors shall
never be less than two (2).
DISQUALIFICATION OF
DIRECTORS
87. The
office of a Director shall be vacated if the Director:
(1) resigns
his office by notice in writing delivered to the Company at the Office or
tendered at a meeting of the Board;
(2) becomes
of unsound mind or dies;
(3) without
special leave of absence from the Board, is absent from meetings of the Board
for six consecutive months and the Board resolves that his office be vacated;
or
(4) becomes
bankrupt or has a receiving order made against him or suspends payment or
compounds with his creditors;
(5) is
prohibited by law from being a Director; or
(6) ceases
to be a Director by virtue of any provision of the Statutes or is removed from
office pursuant to these Articles.
- 25
-
EXECUTIVE
DIRECTORS
88. The
Board may from time to time appoint any one or more of its body to be a managing
director, joint managing director or deputy managing director or to hold any
other employment or executive office with the Company for such period (subject
to their continuance as Directors) and upon such terms as the Board may
determine and the Board may revoke or terminate any of such
appointments. Any such revocation or termination as aforesaid shall
be without prejudice to any claim for damages that such Director may have
against the Company or the Company may have against such Director. A
Director appointed to an office under this Article shall be subject to the same
provisions as to removal as the other Directors of the Company, and he shall
(subject to the provisions of any contract between him and the Company) ipso
facto and immediately cease to hold such office if he shall cease to hold the
office of Director for any cause.
89. Notwithstanding
Articles 90, 91, 92 and 93, an executive director appointed to an office under
Article 88 hereof shall receive such remuneration (whether by way of salary,
commission, participation in profits or otherwise or by all or any of those
modes) and such other benefits (including pension and/or gratuity and/or other
benefits on retirement) and allowances as the Board may from time to time
determine, and either in addition to or in lieu of his remuneration as a
Director.
DIRECTORS’ FEES AND
EXPENSES
90. The
Directors shall receive such remuneration as the Board may from time to time
determine. Each Director shall be entitled to be repaid or prepaid
all traveling, hotel and incidental expenses reasonably incurred or expected to
be incurred by him in attending meetings of the Board or committees of the board
or general meetings or separate meetings of any class of shares or of debenture
of the Company or otherwise in connection with the discharge of his duties as a
Director. The ordinary remuneration of the Directors shall from time to time be
determined by the Company in general meeting and shall (unless otherwise
directed by the resolution by which it is voted) be divided amongst the Board in
such proportions and in such manner as the Board may agree or, failing
agreement, equally, except that any Director who shall hold office for part only
of the period in respect of which such remuneration is payable shall be entitled
only to rank in such division for a proportion of remuneration related to the
period during which he has held office. Such remuneration shall be
deemed to accrue from day to day.
91. Each
Director shall be entitled to be repaid or prepaid all traveling, hotel and
incidental expenses reasonably incurred or expected to be incurred by him in
attending meetings of the Board or committees of the Board or general meetings
or separate meetings of any class of shares or of debentures of the Company or
otherwise in connection with the discharge of his duties as a
Director.
92. Any
Director who, by request, goes or resides abroad for any purpose of the Company
or who performs services which in the opinion of the Board go beyond the
ordinary duties of a Director may be paid such extra remuneration (whether by
way of salary, commission, participation in profits or otherwise) as the Board
may determine and such extra remuneration shall be in addition to or in
substitution for any ordinary remuneration provided for by or pursuant to any
other Article.
93. The
Board shall obtain the approval of the Company in general meeting before making
any payment to any Director or past Director of the Company by way of
compensation for loss of office, or as consideration for or in connection with
his retirement from office (not being payment to which the Director is
contractually entitled).
- 26
-
DIRECTORS’
INTERESTS
94. (1) No
contract or transaction between the Company and one or more of its Directors (an
“Interested Director”) or officers, or between the Company and any of their
affiliates (an “Interested Transaction”), shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board or committee which authorizes the
contract or transaction, or solely because any such Director's or officer's
votes are counted for such purpose, if:
|
(a)
|
The
material facts as to the Director's or officer's relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
|
|
(b)
|
The
material facts as to the Director's or officer's relationship or interest
and as to the contract or transaction are disclosed or are known to the
Members entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the Members;
or
|
|
(c)
|
The
contract or transaction is fair as to the Company as of the time it is
authorized, approved or ratified, by the Board, a committee or the
Members.
|
(2) A
majority of independent Directors who had access, at the Company’s expense, to
its attorneys or independent legal counsel must vote in favor of any Interested
Transaction and determine that the terms of the Interested Transaction are no
less favorable to us than those that would be available to us with respect to
such a transaction from unaffiliated third parties.
(3) The
Board shall review and approve all payments made to the Initial Members,
officers, Directors, and their respective affiliates and any Interested Director
shall abstain from such review and approval.
GENERAL POWERS OF THE
DIRECTORS
95. (1) The
business of the Company shall be managed and conducted by the Board, which may
pay all expenses incurred in forming and registering the Company and may
exercise all powers of the Company (whether relating to the management of the
business of the Company or otherwise) which are not by the Statutes or by these
Articles required to be exercised by the Company in general meeting, subject
nevertheless to the provisions of the Statutes and of these Articles and to such
regulations being not inconsistent with such provisions, as may be prescribed by
the Company in general meeting, but no regulations made by the Company in
general meeting shall invalidate any prior act of the Board which would have
been valid if such regulations had not been made. The general powers
given by this Article shall not be limited or restricted by any special
authority or power given to the Board by any other Article.
- 27
-
(2) Without
prejudice to the general powers conferred by these Articles it is hereby
expressly declared that the Board shall have the following powers:
|
(a)
|
To
give to any person the right or option of requiring at a future date that
an allotment shall be made to him of any share at par or at such premium
as may be agreed.
|
|
(b)
|
To
give to any Directors, officers or employees of the Company an interest in
any particular business or transaction or participation in the profits
thereof or in the general profits of the Company either in addition to or
in substitution for a salary or other
remuneration.
|
|
(c)
|
To
resolve that the Company be deregistered in the Cayman Islands and
continued in a named jurisdiction outside the Cayman Islands subject to
the provisions of the Law.
|
96. The
Board may by power of attorney appoint any company, firm or person or any
fluctuating body of persons, whether nominated directly or indirectly by the
Board, 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 Board under these Articles) and for such period and subject
to such conditions as it may think fit, and any such power of attorney may
contain such provisions for the protection and convenience of persons dealing
with any such attorney as the Board may think fit, and may also authorize any
such attorney to sub-delegate all or any of the powers, authorities and
discretions vested in him. Such attorney or attorneys may, if so authorized
under the Seal of the Company, execute any deed or instrument under their
personal seal with the same effect as the affixation of the Company’s
Seal.
97. The
Board may entrust to and confer upon a managing director, joint managing
director, deputy managing director, an executive director or any Director any of
the powers exercisable by it upon such terms and conditions and with such
restrictions as it thinks fit, and either collaterally with, or to the exclusion
of, its own powers, and may from time to time revoke or vary all or any of such
powers but no person dealing in good faith and without notice of such revocation
or variation shall be affected thereby.
98. All
checks, promissory notes, drafts, bills of exchange and other instruments,
whether negotiable or transferable or not, 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 the Board shall from time to time by
resolution determine. The Company’s banking accounts shall be kept
with such banker or bankers as the Board shall from time to time
determine.
- 28
-
99. (1) The
Board may establish or concur or join with other companies (being subsidiary
companies of the Company or companies with which it is associated in business)
in establishing and making contributions out of the Company’s moneys to any
schemes or funds for providing pensions, sickness or compassionate allowances,
life assurance or other benefits for employees (which expression as used in this
and the following paragraph shall include any Director or ex-Director who may
hold or have held any executive office or any office of profit under the Company
or any of its subsidiary companies) and ex-employees of the Company and their
dependants or any class or classes of such person.
(2) The
Board may pay, enter into agreements to pay or make grants of revocable or
irrevocable pensions or other benefits to employees and ex-employees and their
dependants, or to any of such persons, including pensions or benefits additional
to those, if any, to which such employees or ex-employees or their dependants
are or may become entitled under any such scheme or fund as mentioned in the
last preceding paragraph. Any such pension or benefit may, as the
Board considers desirable, be granted to an employee either before and in
anticipation of or upon or at any time after his actual retirement, and may be
subject or not subject to any terms or conditions as the Board may
determine.
BORROWING
POWERS
100. The
Board may exercise all the powers of the Company to raise or borrow money and to
mortgage or charge all or any part of the undertaking, property and assets
(present and future) and uncalled capital of the Company and, subject to the
Law, to issue debentures, bonds and other securities, whether outright or as
collateral security for any debt, liability or obligation of the Company or of
any third party.
101. Debentures,
bonds and other securities may be made assignable free from any equities between
the Company and the person to whom the same may be issued.
102. Any
debentures, bonds or other securities may be issued at a discount (other than
shares), premium or otherwise and with any special privileges as to redemption,
surrender, drawings, allotment of shares, attending and voting at general
meetings of the Company, appointment of Directors and otherwise.
103. (1) Where
any uncalled capital of the Company is charged, all persons taking any
subsequent charge thereon shall take the same subject to such prior charge, and
shall not be entitled, by notice to the Members or otherwise, to obtain priority
over such prior charge.
(2) The
Board shall cause a proper register to be kept, in accordance with the
provisions of the Law, of all charges specifically affecting the property of the
Company and of any series of debentures issued by the Company and shall duly
comply with the requirements of the Law in regard to the registration of charges
and debentures therein specified and otherwise.
PROCEEDINGS OF THE
DIRECTORS
104. The
Board may meet for the dispatch of business, adjourn and otherwise regulate its
meetings as it considers appropriate. Questions arising at any
meeting shall be determined by a majority of votes. In the case of
any equality of votes the chairman of the meeting shall not have an additional
or casting vote and the resolution shall fail.
- 29
-
105. A
meeting of the Board may be convened by the Secretary on request of a Director
or by any Director. The Secretary shall convene a meeting of the
Board of which notice may be given in writing or by telephone or in such other
manner as the Board may from time to time determine whenever he shall be
required so to do by the president or chairman, as the case may be, or any
Director.
106. (1) The
quorum necessary for the transaction of the business of the Board shall be equal
to a majority of the Board.
(2) Directors
may participate in any meeting of the Board by means of a conference telephone
or other communications equipment through which all persons participating in the
meeting can communicate with each other simultaneously and instantaneously and,
for the purpose of counting a quorum, such participation shall constitute
presence at a meeting as if those participating were present in
person.
(3) Any
Director who ceases to be a Director at a Board meeting may continue to be
present and to act as a Director and be counted in the quorum until the
termination of such Board meeting if no other Director objects and if otherwise
a quorum of Directors would not be present.
107. The
continuing Directors or a sole continuing Director may act notwithstanding any
vacancy in the Board but, if and so long as the number of Directors is reduced
below the minimum number fixed by or in accordance with these Articles, the
continuing Directors or Director, notwithstanding that the number of Directors
is below the number fixed by or in accordance with these Articles as the quorum
or that there is only one continuing Director, may act for the purpose of
filling vacancies in the Board or of summoning general meetings of the Company
but not for any other purpose.
108. The
Chairman of the Board shall be the chairman of all meetings of the
Board. If the Chairman of the Board is not present at any meeting
within five (5) minutes after the time appointed for holding the same, the
Directors present may choose one of their number to be chairman of the
meeting.
109. A
meeting of the Board at which a quorum is present shall be competent to exercise
all the powers, authorities and discretions for the time being vested in or
exercisable by the Board.
110. (1) The
Board may delegate any of its powers, authorities and discretions to committees,
consisting of such Director or Directors and other persons as it thinks fit, and
they may, from time to time, revoke such delegation or revoke the appointment of
and discharge any such committees either wholly or in part, and either as to
persons or purposes. Any committee so formed shall, in the exercise
of the powers, authorities and discretions so delegated, conform to any
regulations which may be imposed on it by the Board.
(2) All
acts done by any such committee in conformity with such regulations, and in
fulfillment of the purposes for which it was appointed, but not otherwise, shall
have like force and effect as if done by the Board, and the Board (or if the
Board delegates such power, the committee) shall have power to remunerate the
members of any such committee, and charge such remuneration to the current
expenses of the Company.
- 30
-
111. The
meetings and proceedings of any committee consisting of two or more members
shall be governed by the provisions contained in these Articles for regulating
the meetings and proceedings of the Board so far as the same are applicable and
are not superseded by any regulations imposed by the Board under the last
preceding Article, indicating, without limitation, any committee charter adopted
by the Board for purposes or in respect of any such committee.
112. A
resolution in writing signed by all the Directors except such as are temporarily
unable to act through ill-health or disability shall (provided that such number
is sufficient to constitute a quorum and further provided that a copy of such
resolution has been given or the contents thereof communicated to all the
Directors for the time being entitled to receive notices of Board meetings in
the same manner as notices of meetings are required to be given by these
Articles) be as valid and effectual as if a resolution had been passed at a
meeting of the Board duly convened and held. Such resolution may be
contained in one document or in several documents in like form each signed by
one or more of the Directors and for this purpose a facsimile signature of a
Director shall be treated as valid.
113. All
acts bona fide done by the Board or by any committee or by any person
acting as a Director or members of a committee, shall,
notwithstanding that it is afterwards discovered that there was some defect in
the appointment of any member of the Board or such committee or person acting as
aforesaid or that they or any of them were disqualified or had vacated office,
be as valid as if every such person had been duly appointed and was qualified
and had continued to be a Director or member of such committee.
OFFICERS
114. (1) The
officers of the Company shall consist of the Chairman of the Board, the
Directors and Secretary and such additional officers (who may or may not be
Directors) as the Board may from time to time determine, all of whom shall be
deemed to be officers for the purposes of the Law and these
Articles.
(2) The
Directors shall, as soon as may be after each appointment or election of
Directors, elect amongst the Directors a chairman and if more than one Director
is proposed for this office, the election to such office shall take place in
such manner as the Directors may determine.
(3) The
officers shall receive such remuneration as the Directors may from time to time
determine.
115. (1) The
Secretary and additional officers, if any, shall be appointed by the Board and
shall hold office on such terms and for such period as the Board may
determine. If thought fit, two or more persons may be appointed as
joint Secretaries. The Board may also appoint from time to time on
such terms as it thinks fit one or more assistant or deputy
Secretaries.
(2) The
Secretary shall attend all meetings of the Members and shall keep correct
minutes of such meetings and enter the same in the proper books provided for the
purpose. He shall perform such other duties as are prescribed by the
Law or these Articles or as may be prescribed by the Board.
- 31
-
116. The
officers of the Company shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them by
the Directors from time to time.
117. A
provision of the Law or of these Articles requiring or authorizing a thing to be
done by or to a Director and the Secretary shall not be satisfied by its being
done by or to the same person acting both as Director and as or in place of the
Secretary.
REGISTER OF DIRECTORS AND
OFFICERS
118. The
Company shall cause to be kept in one or more books at its Office a Register of
Directors and officers in which there shall be entered the full names and
addresses of the Directors and officers and such other particulars as required
by the Law or as the Directors may determine. The Company shall send to the
Registrar of Companies in the Cayman Islands a copy of such register, and shall
from time to time notify to the said Registrar of any change that takes place in
relation to such Directors and officers as required by the Law.
MINUTES
119. (1)
The Board shall cause
minutes to be duly entered in books provided for the purpose:
|
(a)
|
of
all elections and appointments of
officers;
|
|
(b)
|
of
the names of the Directors present at each meeting of the Directors and of
any committee of the Directors;
|
|
(c)
|
of
all resolutions and proceedings of each general meeting of the Members,
meetings of the Board and meetings of committees of the Board and where
there are managers, of all proceedings of meetings of the
managers.
|
|
(2)
|
Minutes
shall be kept by the Secretary at the
Office.
|
SEAL
120. (1)
The Company shall have one or
more Seals, as the Board may determine. For the purpose of sealing
documents creating or evidencing securities issued by the Company, the Company
may have a securities seal which is a facsimile of the Seal of the Company with
the addition of the word “Securities” on its face or in such other form as the
Board may approve. The Board shall provide for the custody of each
Seal and no Seal shall be used without the authority of the Board or of a
committee of the Board authorized by the Board in that
behalf. Subject as otherwise provided in these Articles, any
instrument to which a Seal is affixed shall be signed autographically by one
Director and the Secretary or by two Directors or by such other person
(including a Director) or persons as the Board may appoint, either generally or
in any particular case, save that as regards any certificates for shares or
debentures or other securities of the Company the Board may by resolution
determine that such signatures or either of them shall be dispensed with or
affixed by some method or system of mechanical signature. Every
instrument executed in manner provided by this Article shall be deemed to be
sealed and executed with the authority of the Board previously
given.
- 32
-
(2) Where
the Company has a Seal for use abroad, the Board may by writing under the Seal
appoint any agent or committee abroad to be the duly authorized agent of the
Company for the purpose of affixing and using such Seal and the Board may impose
restrictions on the use thereof as may be thought fit. Wherever in
these Articles reference is made to the Seal, the reference shall,
when and so far as may be applicable, be deemed to include any such other Seal
as aforesaid.
AUTHENTICATION OF
DOCUMENTS
121. Any
Director or the Secretary or any person appointed by the Board for the purpose
may authenticate any documents affecting the constitution of the Company and any
resolution passed by the Company or the Board or any committee, and any books,
records, documents and accounts relating to the business of the Company, and to
certify copies thereof or extracts therefrom as true copies or extracts, and if
any books, records, documents or accounts are elsewhere than at the Office or
the head office the local manager or other officer of the Company having the
custody thereof shall be deemed to be a person so appointed by the
Board. A document purporting to be a copy of a resolution, or an
extract from the minutes of a meeting, of the Company or of the Board or any
committee which is so certified shall be conclusive evidence in favor of all
persons dealing with the Company upon the faith thereof that such resolution has
been duly passed or, as the case may be, that such minutes or extract is a true
and accurate record of proceedings at a duly constituted meeting.
DIVIDENDS AND OTHER
PAYMENTS
122. Subject
to the Law, the Company in general meeting or the Board may from time to time
declare dividends in any currency to be paid to the Members but no dividend
shall be declared in excess of the amount recommended by the Board.
123. Dividends
may be declared and paid out of the profits of the Company, realized or
unrealized, or from any reserve set aside from profits which the Directors
determine is no longer needed. The Board may also declare and pay
dividends out of share premium account or any other fund or account which can be
authorized for this purpose in accordance with the Law.
124. Except
in so far as the rights attaching to, or the terms of issue of, any share
otherwise provide:
|
(a)
|
all
dividends shall be declared and paid according to the amounts paid up on
the shares in respect of which the dividend is paid, but no amount paid up
on a share in advance of calls shall be treated for the purposes of this
Article as paid up on the share;
and
|
- 33
-
|
(b)
|
all
dividends shall be apportioned and paid pro rata according to the amounts
paid up on the shares during any portion or portions of the period in
respect of which the dividend is
paid.
|
125. The
Board may from time to time pay to the Members such interim dividends as appear
to the Board to be justified by the profits of the Company and in particular
(but without prejudice to the generality of the foregoing) if at any time the
share capital of the Company is divided into different classes, the Board may
pay such interim dividends in respect of those shares in the capital of the
Company which confer on the holders thereof deferred or non-preferential rights
as well as in respect of those shares which confer on the holders thereof
preferential rights with regard to dividend and provided that the Board acts
bona fide the Board shall not incur any responsibility to the holders of shares
conferring any preference for any damage that they may suffer by reason of the
payment of an interim dividend on any shares having deferred or non-preferential
rights and may also pay any fixed dividend which is payable on any shares of the
Company half-yearly or on any other dates, whenever such profits, in the opinion
of the Board, justifies such payment.
126. The
Board may deduct from any dividend or other moneys payable to a Member by the
Company on or in respect of any shares all sums of money (if any) presently
payable by him to the Company on account of calls or otherwise.
127. No
dividend or other moneys payable by the Company on or in respect of any share
shall bear interest against the Company.
128. Any
dividend, interest or other sum payable in cash to the holder of shares may be
paid by check or warrant sent through the post addressed to the holder at his
registered address or, in the case of joint holders, addressed to the holder
whose name stands first in the Register in respect of the shares at his address
as appearing in the Register or addressed to such person and at such address as
the holder or joint holders may in writing direct. Every such check
or warrant shall, unless the holder or joint holders otherwise direct, be made
payable to the order of the holder or, in the case of joint holders, to the
order of the holder whose name stands first on the Register in respect of such
shares, and shall be sent at his or their risk and payment of the check or
warrant by the bank on which it is drawn shall constitute a good discharge to
the Company notwithstanding that it may subsequently appear that the same has
been stolen or that any endorsement thereon has been forged. Any one
of two or more joint holders may give effectual receipts for any dividends or
other moneys payable or property distributable in respect of the shares held by
such joint holders.
129. All
dividends or bonuses unclaimed for one (1) year after having been declared may
be invested or otherwise made use of by the Board for the benefit of the Company
until claimed. Any dividend or bonuses unclaimed after a period of
six (6) years from the date of declaration shall be forfeited and shall revert
to the Company. The payment by the Board of any unclaimed dividend or
other sums payable on or in respect of a share into a separate account shall not
constitute the Company a trustee in respect thereof.
- 34
-
130. Whenever
the Board or the Company in general meeting has resolved that a dividend be paid
or declared, the Board may further resolve that such dividend be satisfied
wholly or in part by the distribution of specific assets of any kind and in
particular of paid up shares, debentures or warrants to subscribe securities of
the Company or any other company, or in any one or more of such ways, and where
any difficulty arises in regard to the distribution the Board may settle the
same as it thinks expedient, and in particular may issue certificates in respect
of fractions of shares, disregard fractional entitlements or round the same up
or down, and may fix the value for distribution of such specific assets, or any
part thereof, and may determine that cash payments shall be made to any Members
upon the footing of the value so fixed in order to adjust the rights of all
parties, and may vest any such specific assets in trustees as may seem expedient
to the Board and may appoint any person to sign any requisite instruments of
transfer and other documents on behalf of the persons entitled to the dividend,
and such appointment shall be effective and binding on the
Members. The Board may resolve that no such assets shall be made
available to Members with registered addresses in any particular territory or
territories where, in the absence of a registration statement or other special
formalities, such distribution of assets would or might, in the opinion of the
Board, be unlawful or impracticable and in such event the only entitlement of
the Members aforesaid shall be to receive cash payments as
aforesaid. Members affected as a result of the foregoing sentence
shall not be or be deemed to be a separate class of Members for any purpose
whatsoever.
131. (1) Whenever
the Board or the Company in general meeting has resolved that a dividend be paid
or declared on any class of the share capital of the Company, the Board may
further resolve either:
|
(a)
|
that
such dividend be satisfied wholly or in part in the form of an allotment
of shares credited as fully paid up, provided that the Members entitled
thereto will be entitled to elect to receive such dividend (or part
thereof if the Board so determines) in cash in lieu of such
allotment. In such case, the following provisions shall
apply:
|
|
(i)
|
the
basis of any such allotment shall be determined by the
Board;
|
|
(ii)
|
the
Board, after determining the basis of allotment, shall give not less than
ten (10) days’ Notice to the holders of the relevant shares of the right
of election accorded to them and shall send with such notice forms of
election and specify the procedure to be followed and the place at which
and the latest date and time by which duly completed forms of election
must be lodged in order to be
effective;
|
|
(iii)
|
the
right of election may be exercised in respect of the whole or part of that
portion of the dividend in respect of which the right of election has been
accorded; and
|
|
(iv)
|
the
dividend (or that part of the dividend to be satisfied by the allotment of
shares as aforesaid) shall not be payable in cash on shares in respect
whereof the cash election has not been duly exercised (“the non-elected
shares”) and in satisfaction thereof shares of the relevant class shall be
allotted credited as fully paid up to the holders of the non-elected
shares on the basis of allotment determined as aforesaid and for such
purpose the Board shall capitalize and apply out of any part of the
undivided profits of the Company (including profits carried and standing
to the credit of any reserves or other special account, share premium
account, capital redemption reserve other than the Subscription Rights
Reserve) as the Board may determine, such sum as may be required to pay up
in full the appropriate number of shares of the relevant class for
allotment and distribution to and amongst the holders of the non-elected
shares on such basis; or
|
- 35
-
|
(b)
|
that
the Members entitled to such dividend shall be entitled to elect to
receive an allotment of shares credited as fully paid up in lieu of the
whole or such part of the dividend as the Board may think
fit. In such case, the following provisions shall
apply:
|
|
(i)
|
the
basis of any such allotment shall be determined by the
Board;
|
|
(ii)
|
the
Board, after determining the basis of allotment, shall give not less than
ten (10) days’ Notice to the holders of the relevant shares of the right
of election accorded to them and shall send with such notice forms of
election and specify the procedure to be followed and the place at which
and the latest date and time by which duly completed forms of election
must be lodged in order to be
effective;
|
|
(iii)
|
the
right of election may be exercised in respect of the whole or part of that
portion of the dividend in respect of which the right of election has been
accorded; and
|
|
(iv)
|
the
dividend (or that part of the dividend in respect of which a right of
election has been accorded) shall not be payable in cash on shares in
respect whereof the share election has been duly exercised (“the elected
shares”) and in lieu thereof shares of the relevant class shall be
allotted credited as fully paid up to the holders of the elected shares on
the basis of allotment determined as aforesaid and for such purpose the
Board shall capitalize and apply out of any part of the undivided profits
of the Company (including profits carried and standing to the credit of
any reserves or other special account, share premium account, capital
redemption reserve other than the Subscription Rights Reserve) as the
Board may determine, such sum as may be required to pay up in full the
appropriate number of shares of the relevant class for allotment and
distribution to and amongst the holders of the elected shares on such
basis.
|
|
(2)
|
(a)
|
The
shares allotted pursuant to the provisions of paragraph (1) of this
Article shall rank pari passu in all respects with shares of the same
class (if any) then in issue save only as regards participation in the
relevant dividend or in any other distributions, bonuses or rights paid,
made, declared or announced prior to or contemporaneously with the payment
or declaration of the relevant dividend unless, contemporaneously with the
announcement by the Board of their proposal to apply the provisions of
sub-paragraph (a) or (b) of paragraph (2) of this Article in relation to
the relevant dividend or contemporaneously with their announcement of the
distribution, bonus or rights in question, the Board shall specify that
the shares to be allotted pursuant to the provisions of paragraph (1) of
this Article shall rank for participation in such distribution, bonus or
rights.
|
- 36
-
|
(b)
|
The
Board may do all acts and things considered necessary or
expedient to give effect to any capitalization pursuant to the provisions
of paragraph (1) of this Article, with full power to the Board to make
such provisions as it thinks fit in the case of shares becoming
distributable in fractions (including provisions whereby, in whole or in
part, fractional entitlements are aggregated and sold and the net proceeds
distributed to those entitled, or are disregarded or rounded up or down or
whereby the benefit of fractional entitlements accrues to the Company
rather than to the Members concerned). The Board may authorize
any person to enter into on behalf of all Members interested, an agreement
with the Company providing for such capitalization and matters incidental
thereto and any agreement made pursuant to such authority shall be
effective and binding on all
concerned.
|
(3) The
Company may upon the recommendation of the Board by ordinary resolution resolve
in respect of any one particular dividend of the Company that notwithstanding
the provisions of paragraph (1) of this Article a dividend may be satisfied
wholly in the form of an allotment of shares credited as fully paid up without
offering any right to Members to elect to receive such dividend in cash in lieu
of such allotment.
(4) The
Board may on any occasion determine that rights of election and the allotment of
shares under paragraph (1) of this Article shall not be made available or made
to any Members with registered addresses in any territory where, in the absence
of a registration statement or other special formalities, the circulation of an
offer of such rights of election or the allotment of shares would or might, in
the opinion of the Board, be unlawful or impracticable, and in such event the
provisions aforesaid shall be read and construed subject to such
determination. Members affected as a result of the foregoing sentence
shall not be or be deemed to be a separate class of Members for any purpose
whatsoever.
(5) Any
resolution declaring a dividend on shares of any class, whether a resolution of
the Company in general meeting or a resolution of the Board, may specify that
the same shall be payable or distributable to the persons registered as the
holders of such shares at the close of business on a particular date,
notwithstanding that it may be a date prior to that on which the resolution is
passed, and thereupon the dividend shall be payable or distributable to them in
accordance with their respective holdings so registered, but without prejudice
to the rights inter se in respect of such dividend of transferors and
transferees of any such shares. The provisions of this Article shall
mutatis mutandis apply to bonuses, capitalization issues, distributions of
realized capital profits or offers or grants made by the Company to the
Members.
RESERVES
132. (1) The
Board shall establish an account to be called the share premium account and
shall carry to the credit of such account from time to time a sum equal to the
amount or value of the premium paid on the issue of any share in the
Company. Unless otherwise provided by the provisions of these
Articles, the Board may apply the share premium account in any manner permitted
by the Law. The Company shall at all times comply with the provisions
of the Law in relation to the share premium account.
- 37
-
(2) Before
recommending any dividend, the Board may set aside out of the profits of the
Company such sums as it determines as reserves which shall, at the discretion of
the Board, be applicable for any purpose to which the profits of the Company may
be properly applied and pending such application may, also at such discretion,
either be employed in the business of the Company or be invested in such
investments as the Board may from time to time think fit and so that it shall
not be necessary to keep any investments constituting the reserve or reserves
separate or distinct from any other investments of the Company. The
Board may also without placing the same to reserve carry forward any profits
which it may think prudent not to distribute.
CAPITALISATION
133. The
Company may, upon the recommendation of the Board, at any time and from time to
time pass an ordinary resolution to the effect that it is desirable to
capitalize all or any part of any amount for the time being standing to the
credit of any reserve or fund (including a share premium account and capital
redemption reserve and the profit and loss account) whether or not the same is
available for distribution and accordingly that such amount be set free for
distribution among the Members or any class of Members who would be entitled
thereto if it were distributed by way of dividend and in the same proportions,
on the footing that the same is not paid in cash but is applied either in or
towards paying up the amounts for the time being unpaid on any shares in the
Company held by such Members respectively or in paying up in full unissued
shares, debentures or other obligations of the Company, to be allotted and
distributed credited as fully paid up among such Members, or partly in one way
and partly in the other, and the Board shall give effect to such resolution
provided that, for the purposes of this Article, a share premium account and any
capital redemption reserve or fund representing unrealized profits, may be
applied only in paying up in full unissued shares of the Company to be allotted
to such Members credited as fully paid.
134. The
Board may settle, as it considers appropriate, any difficulty arising in regard
to any distribution under the last preceding Article and in particular may issue
certificates in respect of fractions of shares or authorize any person to sell
and transfer any fractions or may resolve that the distribution should be as
nearly as may be practicable in the correct proportion but not exactly so or may
ignore fractions altogether, and may determine that cash payments shall be made
to any Members in order to adjust the rights of all parties, as may seem
expedient to the Board. The Board may appoint any person to sign on
behalf of the persons entitled to participate in the distribution any contract
necessary or desirable for giving effect thereto and such appointment shall be
effective and binding upon the Members.
SUBSCRIPTION RIGHTS
RESERVE
135. The
following provisions shall have effect to the extent that they are not
prohibited by and are in compliance with the Law:
- 38
-
|
(1)
|
If,
so long as any of the rights attached to any warrants issued by the
Company to subscribe for shares of the Company shall remain exercisable,
the Company does any act or engages in any transaction which, as a result
of any adjustments to the subscription price in accordance with the
provisions of the conditions of the warrants, would reduce the
subscription price to below the par value of a share, then the following
provisions shall apply:
|
|
(a)
|
as
from the date of such act or transaction the Company shall establish and
thereafter (subject as provided in this Article) maintain in accordance
with the provisions of this Article a reserve (the “Subscription Rights
Reserve”) the amount of which shall at no time be less than the sum which
for the time being would be required to be capitalized and applied in
paying up in full the nominal
|
amount of
the additional shares required to be issued and allotted credited as fully paid
pursuant to sub-paragraph (c) below on the exercise in full of all the
subscription rights outstanding and shall apply the Subscription Rights Reserve
in paying up such additional shares in full as and when the same are
allotted;
|
(b)
|
the
Subscription Rights Reserve shall not be used for any purpose other than
that specified above unless all other reserves of the Company (other than
share premium account) have been extinguished and will then only be used
to make good losses of the Company if and so far as is required by
law;
|
|
(c)
|
upon
the exercise of all or any of the subscription rights represented by any
warrant, the relevant subscription rights shall be exercisable in respect
of a nominal amount of shares equal to the amount in cash which the holder
of such warrant is required to pay on exercise of the subscription rights
represented thereby (or, as the case may be the relevant portion thereof
in the event of a partial exercise of the subscription rights) and, in
addition, there shall be allotted in respect of such subscription rights
to the exercising warrantholder, credited as fully paid, such additional
nominal amount of shares as is equal to the difference
between:
|
|
(i)
|
the
said amount in cash which the holder of such warrant is required to pay on
exercise of the subscription rights represented thereby (or, as the case
may be, the relevant portion thereof in the event of a partial exercise of
the subscription rights); and
|
|
(ii)
|
the
nominal amount of shares in respect of which such subscription rights
would have been exercisable having regard to the provisions of the
conditions of the warrants, had it been possible for such subscription
rights to represent the right to subscribe for shares at less than par and
immediately upon such exercise so much of the sum standing to the credit
of the Subscription Rights Reserve as is required to pay up in full such
additional nominal amount of shares shall be capitalized and applied in
paying up in full such additional nominal amount of shares which shall
forthwith be allotted credited as fully paid to the exercising
warrantholders; and
|
- 39
-
|
(d)
|
if,
upon the exercise of the subscription rights represented by any warrant,
the amount standing to the credit of the Subscription Rights Reserve is
not sufficient to pay up in full such additional nominal amount of shares
equal to such difference as aforesaid to which the exercising
warrantholder is entitled, the Board shall apply any profits or reserves
then or thereafter becoming available (including, to the extent permitted
by law, share premium account) for such purpose until such additional
nominal amount of shares is paid up and allotted as aforesaid and until
then no dividend or other distribution shall be paid or made on the fully
paid shares of the Company then in issue. Pending such payment
and allotment, the exercising warrantholder shall be issued by the Company
with a certificate evidencing his right to the allotment of such
additional nominal amount of shares. The rights represented by
any such certificate shall be in registered form and shall be transferable
in whole or in part in units of one share in the like manner as the shares
for the time being are transferable, and the Company shall make such
arrangements in relation to the maintenance of a register therefor and
other matters in relation thereto as the Board may think fit and adequate
particulars thereof shall be made known to each relevant exercising
warrantholder upon the issue of such
certificate.
|
(2) Shares
allotted pursuant to the provisions of this Article shall rank pari passu in all
respects with the other shares allotted on the relevant exercise of the
subscription rights represented by the warrant
concerned. Notwithstanding anything contained in paragraph (1) of
this Article, no fraction of any share shall be allotted on exercise of the
subscription rights.
(3) The
provision of this Article as to the establishment and maintenance of the
Subscription Rights Reserve shall not be altered or added to in any way which
would vary or abrogate, or which would have the effect of varying or abrogating
the provisions for the benefit of any warrantholder or class of warrantholders
under this Article without the sanction of a special resolution of such
warrantholders or class of warrantholders.
(4) A
certificate or report by the auditors for the time being of the Company as to
whether or not the Subscription Rights Reserve is required to be established and
maintained and if so the amount thereof so required to be established and
maintained, as to the purposes for which the Subscription Rights Reserve has
been used, as to the extent to which it has been used to make good losses of the
Company, as to the additional nominal amount of shares required to be allotted
to exercising warrantholders credited as fully paid, and as to any other matter
concerning the Subscription Rights Reserve shall (in the absence of manifest
error) be conclusive and binding upon the Company and all warrantholders and
Members.
ACCOUNTING
RECORDS
136. The
Board shall cause true accounts to be kept of the sums of money received and
expended by the Company, and the matters in respect of which such receipt and
expenditure take place, and of the property, assets, credits and liabilities of
the Company and of all other matters required by the Law or necessary to give a
true and fair view of the Company’s affairs and to explain its
transactions.
- 40
-
137. The
accounting records shall be kept at the Office or, at such other place or places
as the Board decides and shall always be open to inspection by the
Directors. No Member (other than a Director) shall have any right of
inspecting any accounting record or book or document of the Company except as
conferred by law or authorized by the Board or the Company in general
meeting.
138. Subject
to Article 139, a printed copy of the Directors’ report, accompanied by the
balance sheet and profit and loss account, including every document required by
law to be annexed thereto, made up to the end of the applicable financial year
and containing a summary of the assets and liabilities of the Company under
convenient heads and a statement of income and expenditure, together with a copy
of the Auditors’ report, shall be sent to each person entitled thereto at least
five (5) days before the date of the general meeting and laid before the Company
at the annual general meeting held in accordance with Article 56 provided that
this Article shall not require a copy of those documents to be sent to any
person whose address the Company is not aware or to more than one of the joint
holders of any shares or debentures.
139. Subject
to due compliance with all applicable Statutes, rules and regulations,
including, without limitation, the rules of the Designated Stock Exchange, and
to obtaining all necessary consents, if any, required thereunder, the
requirements of Article 138 shall be deemed satisfied in relation to any person
by sending to the person in any manner not prohibited by the Statutes, a summary
financial statement derived from the Company’s annual accounts and the
directors’ report which shall be in the form and containing the information
required by applicable laws and regulations, provided that any person who is
otherwise entitled to the annual financial statements of the Company and the
directors’ report thereon may, if he so requires by notice in writing served on
the Company, demand that the Company sends to him, in addition to a summary
financial statement, a complete printed copy of the Company’s annual financial
statement and the directors’ report thereon.
140. The
requirement to send to a person referred to in Article 138 the documents
referred to in that article or a summary financial report in accordance with
Article 139 shall be deemed satisfied where, in accordance with all applicable
Statutes, rules and regulations, including, without limitation, the rules of the
Designated Stock Exchange, the Company publishes copies of the documents
referred to in Article 138 and, if applicable, a summary financial report
complying with Article 139, on the Company’s computer network or in any other
permitted manner (including by sending any form of electronic communication),
and that person has agreed or is deemed to have agreed to treat the publication
or receipt of such documents in such manner as discharging the Company’s
obligation to send to him a copy of such documents.
AUDIT
141. Subject
to applicable law and rules of the Designated Stock Exchange:
(1) The
Directors or a committee thereof may appoint an Auditor of the Company who shall
hold office on such terms as the Directors determine. Such auditor
may be a Member but no Director or officer or employee of the Company shall,
during his continuance in office, be eligible to act as an auditor of the
Company.
142. Subject
to the Law the accounts of the Company shall be audited at least once in every
year.
- 41
-
143. The
remuneration of the Auditor shall be fixed by the Directors or a committee
thereof in such manner as the they may determine.
144. If
the office of auditor becomes vacant by the resignation or death of the Auditor,
or by his becoming incapable of acting by reason of illness or other disability
at a time when his services are required, the Directors shall fill the vacancy
and determine the remuneration of such Auditor.
145. The
Auditor shall at all reasonable times have access to all books kept by the
Company and to all accounts and vouchers relating thereto; and he may call on
the Directors or officers of the Company for any information in their possession
relating to the books or affairs of the Company.
146. The
statement of income and expenditure and the balance sheet provided for by these
Articles shall be examined by the Auditor and compared by him with the books,
accounts and vouchers relating thereto; and he shall make a written report
thereon stating whether such statement and balance sheet are drawn up so as to
present fairly the financial position of the Company and the results of its
operations for the period under review and, in case information shall have been
called for from Directors or officers of the Company, whether the same has been
furnished and has been satisfactory. The financial statements of the
Company shall be audited by the Auditor in accordance with generally accepted
auditing standards. The Auditor shall make a written report thereon
in accordance with generally accepted auditing standards and the report of the
Auditor shall be submitted to the Members in general meeting. The
generally accepted auditing standards referred to herein may be those of a
country or jurisdiction other than the Cayman Islands. If so, the
financial statements and the report of the Auditor should disclose this act and
name such country or jurisdiction.
NOTICES
147. Any
Notice or document, whether or not, to be given or issued under these Articles
from the Company to a Member shall be in writing or by cable, telex or facsimile
transmission message or other form of electronic transmission or communication
and any such Notice and document may be served or delivered by the Company on or
to any Member either personally or by sending it through the post in a prepaid
envelope addressed to such Member at his registered address as appearing in the
Register or at any other address supplied by him to the Company for the purpose
or, as the case may be, by transmitting it to any such address or transmitting
it to any telex or facsimile transmission number or electronic number or address
or website supplied by him to the Company for the giving of Notice to him or
which the person transmitting the notice reasonably and bona fide believes at
the relevant time will result in the Notice being duly received by the Member or
may also be served by advertisement in appropriate newspapers in accordance with
the requirements of the Designated Stock Exchange or, to the extent permitted by
the applicable laws, by placing it on the Company’s website and giving to the
member a notice stating that the notice or other document is available there (a
“notice of availability”). The notice of availability may be given to
the Member by any of the means set out above. In the case of joint
holders of a share all notices shall be given to that one of the joint holders
whose name stands first in the Register and notice so given shall be deemed a
sufficient service on or delivery to all the joint holders.
- 42
-
148. Any
Notice or other document:
|
(a)
|
if
served or delivered by post, shall where appropriate be sent by airmail
and shall be deemed to have been served or delivered on the day following
that on which the envelope containing the same, properly prepaid and
addressed, is put into the post; in proving such service or delivery it
shall be sufficient to prove that the envelope or wrapper containing the
notice or document was properly addressed and put into the post and a
certificate in writing signed by the Secretary or other officer of the
Company or other person appointed by the Board that the envelope or
wrapper containing the notice or other document was so addressed and put
into the post shall be conclusive evidence
thereof;
|
|
(b)
|
if
sent by electronic communication, shall be deemed to be given on the day
on which it is transmitted from the server of the Company or its
agent. A notice placed on the Company’s website is deemed given
by the Company to a Member on the day following that on which a notice of
availability is deemed served on the Member;
and
|
|
(c)
|
if
served or delivered in any other manner contemplated by these Articles,
shall be deemed to have been served or delivered at the time of personal
service or delivery or, as the case may be, at the time of the relevant
dispatch or transmission; and in proving such service or delivery a
certificate in writing signed by the Secretary or other officer of the
Company or other person appointed by the Board as to the act and time of
such service, delivery, dispatch or transmission shall be conclusive
evidence thereof.
|
149. (1) Any
Notice or other document delivered or sent by post to or left at the registered
address of any Member in pursuance of these Articles shall, notwithstanding that
such Member is then dead or bankrupt or that any other event has occurred, and
whether or not the Company has notice of the death or bankruptcy or other event,
be deemed to have been duly served or delivered in respect of any share
registered in the name of such Member as sole or joint holder unless his name
shall, at the time of the service or delivery of the notice or document, have
been removed from the Register as the holder of the share, and such service or
delivery shall for all purposes be deemed a sufficient service or delivery of
such Notice or document on all persons interested (whether jointly with or as
claiming through or under him) in the share.
(2) A
notice may be given by the Company to the person entitled to a share in
consequence of the death, mental disorder or bankruptcy of a Member by sending
it through the post in a prepaid letter, envelope or wrapper addressed to him by
name, or by the title of representative of the deceased, or trustee of the
bankrupt, or by any like description, at the address, if any, supplied for the
purpose by the person claiming to be so entitled, or (until such an address has
been so supplied) by giving the notice in any manner in which the same might
have been given if the death, mental disorder or bankruptcy had not
occurred.
- 43
-
(3) Any
person who by operation of law, transfer or other means whatsoever shall become
entitled to any share shall be bound by every notice in respect of such share
which prior to his name and address being entered on the Register shall have
been duly given to the person from whom he derives his title to such
share.
SIGNATURES
150. For
the purposes of these Articles, a cable or telex or facsimile or electronic
transmission message purporting to come from a holder of shares or, as the case
may be, a Director, or, in the case of a corporation which is a holder of shares
from a director or the secretary thereof or a duly appointed attorney or duly
authorized representative thereof for it and on its behalf, shall in the absence
of express evidence to the contrary available to the person relying thereon at
the relevant time be deemed to be a document or instrument in writing signed by
such holder or Director in the terms in which it is received.
WINDING
UP
151. (1) The
provisions of paragraphs 151 and 152 are subject to the provisions of paragraph
156 until such time as a Business Combination (as defined in paragraph 156) is
consummated.
(2) The
Board shall have power in the name and on behalf of the Company to present a
petition to the court for the Company to be wound up.
(3) A
resolution that the Company be wound up by the court or be wound up voluntarily
shall be a special resolution.
152. (1) Subject
to any special rights, privileges or restrictions as to the distribution of
available surplus assets on liquidation for the time being attached to any class
or classes of shares (i) if the Company shall be wound up and the assets
available for distribution amongst the Members of the Company shall be more than
sufficient to repay the whole of the capital paid up at the commencement of the
winding up, the excess shall be distributed pari passu amongst such members in
proportion to the amount paid up on the shares held by them respectively and
(ii) if the Company shall be wound up and the assets available for distribution
amongst the Members as such shall be insufficient to repay the whole of the
paid-up capital such assets shall be distributed so that, a nearly as may be,
the losses shall be borne by the Members in proportion to the capital paid up,
or which ought to have been paid up, at the commencement of the winding up on
the shares held by them respectively.
(2) If
the Company shall be wound up (whether the liquidation is voluntary or by the
court) the liquidator may, with the authority of a special resolution and any
other sanction required by the Law, divide among the Members in specie or kind
the whole or any part of the assets of the Company and whether or not the assets
shall consist of properties of one kind or shall consist of properties to be
divided as aforesaid of different kinds, and may for such purpose set such value
as he deems fair upon any one or more class or classes of property and may
determine how such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like
authority, vest any part of the assets in trustees upon such trusts for the
benefit of the Members as the liquidator with the like authority shall think
fit, and the liquidation of the Company may be closed and the Company dissolved,
but so that no contributory shall be compelled to accept any shares or other
property in respect of which there is a liability.
- 44
-
INDEMNITY
153. (1) The
Directors, Secretary and other officers and every Auditor for the time being of
the Company and the liquidator or trustees (if any) for the time being acting in
relation to any of the affairs of the Company and everyone of them, and everyone
of their heirs, executors and administrators, shall be indemnified and secured
harmless out of the assets and profits of the Company from and against all
actions, costs, charges, losses, damages and expenses which they or any of them,
their or any of their heirs, executors or administrators, shall or may incur or
sustain by or by reason of any act done, concurred in or omitted in or about the
execution of their duty, or supposed duty, in their respective offices or
trusts; and none of them shall be answerable for the acts, receipts, neglects or
defaults of the other or others of them or for joining in any receipts for the
sake of conformity, or for any bankers or other persons with whom any moneys or
effects belonging to the Company shall or may be lodged or deposited for safe
custody, or for insufficiency or deficiency of any security upon which any
moneys of or belonging to the Company shall be placed out on or invested, or for
any other loss, misfortune or damage which may happen in the execution of their
respective offices or trusts, or in relation thereto; PROVIDED THAT this
indemnity shall not extend to any matter in respect of any fraud or dishonesty
which may attach to any of said persons.
(2) Each
Member agrees to waive any claim or right of action he might have, whether
individually or by or in the right of the Company, against any Director on
account of any action taken by such Director, or the failure of such Director to
take any action in the performance of his duties with or for the Company;
PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud
or dishonesty which may attach to such Director.
AMENDMENT TO MEMORANDUM AND
ARTICLES OF ASSOCIATION
AND NAME OF
COMPANY
154. No
Article shall be rescinded, altered or amended and no new Article shall be made
until the same has been approved by a special resolution of the
Members. A special resolution shall be required to alter the
provisions of the Memorandum of Association or to change the name of the
Company.
INFORMATION
155. No
Member shall be entitled to require discovery of or any information respecting
any detail of the Company’s trading or any matter which is or may be in the
nature of a trade secret or secret process which may relate to the conduct of
the business of the Company and which in the opinion of the Directors it will be
inexpedient in the interests of the members of the Company to communicate to the
public.
- 45
-
BUSINESS
COMBINATION
156. Notwithstanding
any other provision of these Articles, the following provisions (2) through
(10) shall apply during the period commencing upon the adoption of these
Articles and terminating upon the consummation of any “Business Combination” and
shall not be amended. A “Business Combination” shall mean the
acquisition by the Company, through a merger, a share exchange, asset
acquisition, scheme of arrangement, recapitalization, reorganization or other
business combination, or controlling, through contractual arrangements, an
operating business or businesses (“Target Business”). The Company may
not (i) acquire a Target Business in any initial Business Combination with which
its officers or Directors, through their other business activities, had
acquisition or investment discussions in the past, (ii) consummate an initial
Business Combination with any Target Business which is, or has been within five
years of the adoption of these Articles, affiliated with any of the Company’s
officers, directors, Initial Members or their affiliates, including an entity
that is either a portfolio company of, or has otherwise received a material
financial investment from, any private equity fund or investment company (or an
affiliate thereof) that is affiliated with such individuals or (iii) enter into
a an initial Business Combination where the Company acquires less than 100% of a
Target Business and any of the Company’s officers, directors, Initial Members or
their affiliates acquire the remaining portion of such Target Business, unless,
in any case, the Company obtains an opinion from an unaffiliated, independent
investment banking firm[ reasonably acceptable to the underwriter in the IPO]
that the Business Combination is fair to the unaffiliated Members from a
financial point of view. In the event of any conflict between this
Article and any other Article, the provisions of this Article shall
prevail.
157. (1) Prior
to the consummation of any Business Combination, the Company shall not be
required to submit such Business Combination to its Members for approval unless
the Business Combination is of a type which normally would require such Member
approval under the Law or by the SEC’s rules and regulations. In the
circumstances where the Company elects to structure the Business Combination as
an acquisition that requires Member approval, or the Directors otherwise decide
to seek Member approval of a Business Combination, the Company will hold a
meeting of Members to seek such approval.
(2) In
the event that a Business Combination is to be consummated by the Company, and
an approval of Members is sought pursuant to paragraph 157(1) above, any Public
Member who voted against such Business Combination may, contemporaneous with
such vote, demand that the Company redeem their subunits for a pro rata share of
the Trust Account up to a maximum of $6.00 per subunit (or $5.97 per subunit if
the Over Allotment Option is exercised in full).
(3) In
the event that a Business Combination is to be consummated by the Company, and
an approval of Members is sought pursuant to paragraph 157(1) above, any Public
Member who voted in favour of such Business Combination may, contemporaneous
with such vote, demand that the Company redeem for a full pro rata share of the
Trust Fund (initially anticipated to be no less than approximately $6.00 per
subunit, or $5.97 per subunit if the Over Allotment Option is exercised in full)
net of (i) taxes payable, and (ii) interest income earned on the Trust Fund
previously released to us to fund the Company’s working capital and general
corporate requirements in connection with an initial Business
Combination.
- 46
-
(4) Notwithstanding
anything to the contrary, without the prior consent of the Company, no Member
holding IPO Shares, whether acting singly or with any affiliate or other person
acting in concert or as a “group” (as defined in Section 13(d)(3) of the
Exchange Act), shall be permitted to seek redemption rights with respect to 10%
or more of their subunits.
(5) Notwithstanding
anything to the contrary, without the prior written consent of the Company, no
Member holding IPO Shares, whether acting singly or with any affiliate or other
person acting in concert or as a “group” (as defined in Section 13(d)(3) of the
Exchange Act), shall be permitted to exercise voting rights on any proposal
submitted for consideration at a meeting relating to a proposed Business
Combination with respect to more than 10% of the IPO
Shares. Accordingly, all IPO Shares beneficially owned (as defined in
Section 13(d)(3) of the Exchange Act) by a Member in excess of 10% (the “Excess
Shares”) shall be voted by management of the Company in favor of all proposals
submitted for consideration at such meeting and will remain outstanding
following consummation of such Business Combination in the name of the
Member. Each certificate for IPO Shares, if certificated, or a
written statement of information in lieu of such certificate, shall bear
substantially the following legend (or a similar description):
The
shares represented by this certificate are subject to voting and redemption
restrictions. Without the prior consent of the Company, no Member holding IPO
Shares, whether acting singly or with any affiliate or other person acting in
concert or as a “group” (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended), shall be permitted to exercise voting rights
on any proposal submitted for consideration at a meeting relating to a proposed
Business Combination with respect to more than 10% of the IPO
Shares. The foregoing restrictions are set forth in more detail
in the Company’s Amended and Restated Memorandum and Articles of Association, as
the same may be amended from time to time, a copy of which will be furnished to
each holder on request and without charge. Requests for such a copy may be
directed to the Secretary of the Company at its principal office.
158. The
Company may structure the Business Combination as an acquisition that does not
require shareholder approval. Prior to the consummation of such a Business
Combination, the Company will initiate an issuer tender offer by filing tender
offer documents with the SEC in accordance with Rule 13e-4 and Regulation 14E of
the Exchange Act. Public Members who elect to tender their subunits in
connection with the tender offer will be entitled to receive a pro rata share of
the Trust Account (initially anticipated to be approximately $6.00 per subunit,
or $5.97 per subunit if the Over Allotment Option is exercised in full) net of
(i) taxes payable, and (ii) interest income earned on the Trust Account
previously released to the Company to fund its working capital and general
corporate requirements in connection with our initial Business
Combination.
159. The
Company shall not consummate any Business Combination if 66.66% or more (or
70.88% if the Over Allotment Option is exercised in full) in interest of the
holders of IPO Subunits (the “Redemption Threshold”) exercise their redemption
rights described below. However, if the Company makes any purchases
of the IPO Subunits in accordance with Article 161(1), the Redemption Threshold
will be reduced in direct proportion to the percentage of IPO Subunits purchased
by the Company pursuant to Article 161(1) below such that in the event that the
maximum number of IPO Subunits are repurchased pursuant to Article 161(1),
below, the Company shall not consummate a Business Combination if 18.25% ore
more in interest of the holders of IPO Shares exercise their redemption rights
described below.
- 47
-
160. A
holder of IPO Subunits shall be entitled to receive distributions from the Trust
Fund only in the event (i) of a liquidation of the Company, (ii) if he or she
redeems his or her IPO Subunits in accordance with Articles 157 or 158 or (iii)
that the Company repurchases shares in accordance with Article
161. In no other circumstances shall a holder of IPO Subunits have
any right or interest of any kind in or to the Trust Fund.
161. Subject
to the provisions of the Statute, and, if applicable, the rules of the
Designated Stock Exchange and/or any competent regulatory authority, (i) the
Company may purchase its own issued and outstanding shares provided that the
Members shall have approved the manner of purchase by Ordinary Resolution, and
(ii) the Company is authorized to purchase up to 50% of the IPO Subunits prior
to the consummation of a Business Combination at any time commencing 61 days
after the effective date of the registration statement relating to the Company’s
IPO and ending on the date immediately prior to the date on which the vote held
to approve such Business Combination is to occur for a price of up to $5.70 per
subunit (this authorisation is in accordance with sections 37(2) and 37(3)(d) of
the Statute or any modification or re-enactment thereof for the time being in
force). In the event the Company determines to engage in a tender
offer in connection with a Business Combination, such purchases will be
suspended until the completion of the tender offer (or the Company’s decision
not to move forward with a tender offer).
(1) Purchases
pursuant to Article 161(ii) will be made by the Company only in open market
transactions pursuant to a plan compliant with Section 10b5-1 of the Exchange
Act entered into by the Company immediately prior to the Effective Date which
requires the Company to maintain a limit order for the subunits at $5.70 per
share during the purchase period until the maximum number of subunits have been
purchased. It is intended for such purchases to comply with Rule
10b-18 under the Exchange Act. The Company is permitted to use amounts in the
Trust Fund to complete the purchase of any of its own issued and outstanding
shares in accordance with Article 161(ii).
(2)
The Company is authorised to purchase any share
listed or quoted on a Designated Stock Exchange in accordance with the following
manner of purchase: (i) the maximum number of shares that may be repurchased
shall be equal to the number of issued and outstanding shares of the Company
less one share, and (ii) at such time at such price and on such other terms as
determined and agreed by the Board or Chief Executive Officer of the Company in
their sole discretion; provided however, that (x) such repurchase transaction
shall be in accordance with the relevant code, rules and regulations applicable
to the listing of the shares on the Designated Stock Exchange; and (y) that the
Company be able to pay its debts as they fall due in the ordinary course of
business and is therefore solvent immediately before and after the date on which
the payment in respect of the repurchase transaction is proposed to be
made.
- 48
-
(3) The
Company is authorised to purchase any share not listed or quoted on a Designated
Stock Exchange in accordance with the following manner of purchase: (i) the
Company shall serve a repurchase notice in a form approved by the Board or Chief
Executive Officer of the Company on the Member from whom the shares are to be
repurchased, (ii) the price for the shares being repurchased shall be such price
agreed between the Board and the applicable Member, (iii) the date of repurchase
shall be the date specified in the repurchase notice, (iv) the repurchase shall
be on such other terms as specified in the repurchase notice as determined and
agreed by the Board or Chief Executive Officer of the Company and the applicable
Member in their sole discretion, and (v) that the Company be able to pay its
debts as they fall due in the ordinary course of business and is therefore
solvent immediately before and after the date on which the payment in respect of
the repurchase transaction is proposed to be made.
(4) The
purchase of any share shall not oblige the Company to purchase any other share
other than as may be required pursuant to applicable law and any other
contractual obligations of the Company.
162. Prior
to the Business Combination, the Company may not issue any units, ordinary
shares, warrants, or any options or other securities convertible into or
exchangeable for ordinary shares, or any preferred shares, that participate in
any manner in the proceeds of the Trust Fund, or that vote as a class with the
IPO shares on any vote to approve a Business Combination.
163. In
the event that the Company does not consummate a Business Combination by a date
(the “Termination Date”) which shall be the later of (i) 18 months after the
consummation of the IPO or (ii) 24 months after the consummation of the IPO in
the event that a definitive agreement to complete a Business Combination was
executed but was not consummated within 24 months of the IPO, the existence of
this Company shall cease except for the purposes of winding up the Company’s
affairs and liquidating and the Directors shall take all such action necessary
to dissolve and liquidate the Company as promptly as
practicable. Member approval is not required to dissolve and
liquidate the Company under such circumstance. In the event that the
Company is so dissolved and liquidated, only the holders of IPO Shares shall be
entitled to receive liquidating distributions and the Company shall pay no
liquidating distributions with respect to any other outstanding securities of
the Company.
- 49
-