Attached files
file | filename |
---|---|
8-K - FORM 8-K - UTi WORLDWIDE INC | c15616e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - UTi WORLDWIDE INC | c15616exv3w1.htm |
Exhibit 3.2
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE BVI BUSINESS COMPANIES ACT, 2004
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
UTi WORLDWIDE INC.
A COMPANY LIMITED BY SHARES
1. | DEFINITIONS |
1.1 | Capitalized terms used herein that are not otherwise defined herein are as defined in the
Memorandum of Association of the Company, as amended from time to time. |
1.2 | In the Articles, unless the context otherwise requires, a reference to: |
(a) | a Regulation is a reference to a regulation of the Articles; |
(b) | a Clause is a reference to a clause of the Memorandum; |
(c) | voting by Shareholders is a reference to the casting of the votes attached to
the Shares held by the Shareholder voting; |
(d) | the Act, the Memorandum or the Articles is a reference to the Act, the
Memorandum or the Articles as amended or, in the case of the Act any re-enactment
thereof; and |
(e) | the singular includes the plural and vice versa, and the masculine, feminine or
neuter gender shall equally, where the context admits, include the others. |
1.3 | Any words or expressions defined in the Act unless the context otherwise requires bear the
same meaning in the Memorandum and the Articles unless otherwise defined therein or herein. |
1.4 | Headings are inserted for convenience only and shall be disregarded in interpreting the
Memorandum. |
2. | REGISTERED SHARES |
2.1 | Every Shareholder is entitled to a certificate signed by a director or officer of the
Company, or any other person authorised by Resolution of Directors, or under the Seal
specifying the number of Shares held by him and the signature of the director, officer or
authorised person and the Seal may be facsimiles. A certificate may be issued in electronic
form in accordance with the Electronic Transactions Act, 2001. |
2.2 | Any Shareholder receiving a certificate shall indemnify and hold the Company and its
directors and officers harmless from any loss or liability which it or they may incur by
reason of any wrongful or fraudulent use or representation made by any person by virtue of the
possession thereof. If a certificate for Shares is worn out or lost it may be renewed on
production of the worn out certificate or on satisfactory proof of its loss together with such
indemnity as may be required by Resolution of Directors. |
2.3 | If several Eligible Persons are registered as joint holders of any Shares, any Distribution
on such Shares may be paid to any one of such Eligible Persons. |
3. | SHARES, AUTHORISED CAPITAL, CAPITAL AND SURPLUS |
3.1 | Subject to the provisions of these Articles and the Memorandum, the unissued Shares of the
Company shall be at the disposal of the directors who may, without limiting or affecting any
rights previously conferred on the holders of any existing Shares or class or series of
Shares, offer, allot, grant options over or otherwise dispose of Shares to such persons, at
such times and upon such terms and conditions as the Company may by Resolution of Directors
determine. |
3.2 | No Share in the Company may be issued until the consideration in respect thereof is fully
paid, and when issued the Share is for all purposes fully paid and non-assessable save that a
Share issued for a promissory note or other written obligation to contribute money or property
or a contract for future services may be issued subject to forfeiture in the manner prescribed
in these Articles. |
3.3 | Shares in the Company shall be issued for money, services rendered, personal property
(including other Shares, debt obligations or other securities in the Company), an estate in
real property, a promissory note or other binding obligation to contribute money or property
or any combination of the foregoing or for such other consideration as shall be determined by
a Resolution of Directors. |
3.4 | Shares in the Company may be issued for such amount of consideration as the directors may
from time to time by Resolution of Directors determine, except that in the case of Shares with
par value, the amount shall not be less than the par value, and in the absence of fraud the
decision of the directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved. The consideration in
respect of the Shares constitutes capital to the extent of the par value and the excess
constitutes surplus. |
3.5 | A Share issued by the Company upon conversion of, or in exchange for, another Share or a debt
obligation or other security in the Company, shall be treated for all purposes as having been
issued for money equal to the consideration received or deemed to have been received by the
Company in respect of the other Share, debt obligation or security. |
3.6 | Treasury Shares may be disposed of by the Company on such terms and conditions (not otherwise
inconsistent with these Articles) as the Company may by Resolution of Directors determine. |
3.7 | The Company may issue fractions of a Share and a fractional Share shall have the same
corresponding fractional liabilities, limitations, preferences, privileges, qualifications,
restrictions, rights and other attributes of a whole Share of the same class or series of
Shares. |
3.8 | Upon the issue by the Company of a Share without par value, if an amount is stated in the
Memorandum to be authorized capital represented by such Shares then each Share shall be issued
for no less than the appropriate proportion of such amount which shall constitute capital,
otherwise the consideration in respect of the Share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except that the directors
must designate as capital an amount of the consideration that is at least equal to the
amount that the Share is entitled to as a preference, if any, in the assets of the Company
upon liquidation of the Company. |
- 2 -
3.9 | The Company may purchase, redeem or otherwise acquire and hold its own Shares but only out of
surplus or in exchange for newly issued Shares of equal value. |
3.10 | Subject to provisions to the contrary in |
(a) | the Memorandum or these Articles; |
(b) | the designations, powers, preferences, rights, qualifications, limitations and
restrictions with which the Shares were issued; or |
||
(c) | the subscription agreement for the issue of the Shares, |
the Company may not purchase, redeem or otherwise acquire its own Shares without the consent
of Shareholders whose Shares are to be purchased, redeemed or otherwise acquired.
3.11 | No purchase, redemption or other acquisition of Shares shall be made unless the directors
determine that immediately after the purchase, redemption or other acquisition the Company
will be able to satisfy its liabilities as they become due in the ordinary course of its
business and the realizable value of the assets of the Company will not be less than the sum
of its total liabilities, other than deferred taxes, as shown in the books of account, and its
capital and, in the absence of fraud, the decision of the directors as to the realizable value
of the assets of the Company is conclusive, unless a question of law is involved. |
3.12 | A determination by the directors under the preceding Sub-Regulation is not required where
Shares are purchased, redeemed or otherwise acquired |
(a) | pursuant to a right of a Shareholder to have his Shares redeemed or to have his
Shares exchanged for money or other property of the Company; |
(b) | by virtue of a transfer of capital pursuant to Sub-Regulation 7.4; |
(c) | by virtue of the provisions of Section 179 of the Act; or |
||
(d) | pursuant to an order of the court. |
3.13 | Shares that the Company purchases, redeems or otherwise acquires pursuant to the preceding
Sub-Regulations 3.9 to 3.12 may be cancelled or held as Treasury Shares except to the extent
that such Shares are in excess of 80 percent of the issued Shares of the Company in which case
they shall be cancelled but they shall be available for reissue. |
3.14 | Where Shares in the Company are held by the Company as Treasury Shares or are held by another
entity of which the Company holds, directly or indirectly, Shares having more than 50 percent
of the votes in the election of directors of the other company, such Shares of the Company are
not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding
for any purpose except for purposes of determining the capital of the
Company.
Nothing in this Sub-Regulation 3.14 shall be construed as limiting the right of the Company
to vote shares or any other security, including but not limited to its own Shares, held by
it in a fiduciary capacity.
|
- 3 -
3.15 | The Company may by a Resolution of Directors include in the computation of surplus for any
purpose the unrealised appreciation of the assets of the Company, and, in the absence of
fraud, the decision of the directors as to the value of the assets is conclusive, unless a
question of law is involved. |
|
3.16 | Section 46 of the Act (Pre-emptive rights) does not apply to the Company. |
4. | MORTGAGES AND CHARGES OF SHARES |
4.1 | Shareholders may mortgage or charge their Shares. |
5. | FORFEITURE |
5.1 | Shares that are not fully paid on issue are subject to the forfeiture provisions set forth in
this Regulation and for this purpose Shares issued for a promissory note or other written
obligation to contribute money or property or a contract for future services are deemed to be
not fully paid. |
5.2 | A written notice of call specifying the date for payment to be made shall be served on the
Shareholder who defaults in making payment in respect of the Shares. |
5.3 | The written notice of call referred to in Sub-Regulation 5.2 shall name a further date not
earlier than the expiration of 14 days from the date of service of the notice on or before
which the payment required by the notice is to be made and shall contain a statement that in
the event of non-payment at or before the time named in the notice the Shares, or any of them,
in respect of which payment is not made will be liable to be forfeited. |
5.4 | Where a written notice of call has been issued pursuant to Sub-Regulation 5.3 and the
requirements of the notice have not been complied with, the directors may, at any time before
tender of payment, forfeit and cancel the Shares to which the notice relates. |
5.5 | The Company is under no obligation to refund any moneys to the Shareholder whose Shares have
been cancelled pursuant to Sub-Regulation 5.4 and that Shareholder shall be discharged from
any further obligation to the Company with respect to the cancelled Shares. |
6. | TRANSFER OF SHARES |
6.1 | Subject to any Resolution of Directors, Shares may be transferred by a written instrument of
transfer signed by the transferor and containing the name and address of the transferee, which
shall be sent to the Company for registration. |
6.2 | The transfer of a Share is effective when the name of the transferee is entered on the
register of Shareholders.
|
- 4 -
6.3 | If the directors of the Company are satisfied that an instrument of transfer relating to
Shares has been signed but that the instrument has been lost or destroyed, they may resolve by
Resolution of Directors: |
(a) | to accept such evidence of the transfer of Shares as they consider appropriate;
and |
(b) | that the transferees name should be entered in the register of Shareholders
notwithstanding the absence of the instrument of transfer. |
7. | REDUCTION OR INCREASE IN AUTHORIZED CAPITAL OR CAPITAL |
7.1 | Subject to the terms of the Memorandum, the Company may by a Resolution of Directors or a
Resolution of Shareholders, amend the Memorandum to increase or reduce its authorized capital,
if any, and in connection therewith the Company may increase or reduce the number of such
Shares, increase or reduce the par value of any of its Shares or effect any combination of the
foregoing. |
7.2 | Subject to the terms of the Memorandum, the Company may by a Resolution of Directors or a
Resolution of Shareholders amend the Memorandum to |
(a) | divide the Shares, including issued Shares, of a class or series into a larger
number of Shares of the same class or series; or |
(b) | combine the Shares, including issued Shares, of a class or series into a
smaller number of Shares of the same class or series, |
provided, however, that where Shares with a par value are divided or combined under (a) or
(b) of this Regulation, the aggregate par value of the new Shares must be equal to the
aggregate par value of the original Shares.
7.3 | The capital of the Company may by a Resolution of Directors be increased by transferring an
amount of the surplus of the Company to capital. |
7.4 | Subject to the provisions of the two next succeeding Regulations, the capital of the Company
may by Resolution of Directors be reduced by transferring an amount of the capital of the
Company to surplus. |
7.5 | No reduction of capital shall be effected that reduces the capital of the Company to an
amount that immediately after the reduction is less than the aggregate par value of all
outstanding Shares with par value and all Shares with par value held by the Company as
Treasury Shares and the aggregate of the amounts designated as capital of all outstanding
Shares without par value and all Shares without par value held by the Company as Treasury
Shares that are entitled to a preference, if any, in the assets of the Company upon
liquidation of the Company. |
7.6 | No reduction of capital shall be effected unless the directors determine that immediately
after the reduction the Company will be able to satisfy its liabilities as they become due in
the ordinary course of its business and that the realizable assets of the Company will not be
less than its total liabilities, other than deferred taxes, as shown in the books of the
Company and its remaining capital, and, in the absence of fraud, the decision of the directors
as to the realizable value of the assets of the Company is conclusive, unless a question of
law is involved. |
8. | MEETINGS AND CONSENTS OF SHAREHOLDERS |
8.1 | Any action required or permitted to be taken by the Shareholders must be effected at a duly
called annual or special meeting (as provided for in Sub-Regulations 8.3 and 8.4) of the
Shareholders
entitled to vote on such action and may not be effected by any other means, including for
the avoidance of doubt, by a written consent signed by Shareholders. |
- 5 -
8.2 | All meetings of Shareholders (whether annual or special) shall be held on such dates and at
such places as may be fixed from time to time by the directors in accordance with the
provisions of these Articles. |
8.3 | A meeting of Shareholders, which shall be held no more than once in each calendar year, for
election of directors in accordance with Sub-Regulation 10.1(b) and for such other business as
may properly come before the meeting (the annual meeting of Shareholders) shall be held at
such date and time as may be determined by the directors. |
8.4 | (a) | A meeting of Shareholders other than an annual meeting of Shareholders which shall be
held for the consideration of any business, including the election of directors, shall
hereinafter be referred to as a special meeting of Shareholders. A special meeting of
Shareholders may be called by the directors pursuant to a Resolution of Directors at such
date, time and for the consideration of any business as may be determined by the directors,
save that upon receipt of a valid written request of Shareholders holding at least 30 percent
of the votes of the outstanding voting Shares, the directors shall convene a special meeting
of Shareholders in respect of the matter for which the meeting is requested. To be valid,
such written request must be delivered to the corporate secretary of the Company (the
Secretary) at the principal executive offices of the Company and must specify the nature of
the business proposed to be transacted and such business must be a proper matter for
Shareholder action, and, as to any proposed business or director nominations that such
Shareholders propose to bring before the meeting, such Shareholder must also provide with such
request the information required by subclauses (i) through (viii) of Sub-Regulation 8.16(a) or
required by subclauses (i) through (viii) of Sub-Regulation 10.4(a), as applicable. Such
Shareholder must also provide to the Secretary the updated information as required by
subclause (vi) of Sub-Regulation 10.4(a) or Sub-Regulation 8.16(a), as applicable.
Furthermore, any such business or proposed nominations must comply with, and shall be subject
to, the requirements and provisions of Sub-Regulations 8.15(b), 8.16(b), 10.3(b) and 10.4(b).
Nothing herein shall prohibit the directors from resolving to propose any other business,
proposal or nomination to the Shareholders at any special meeting of Shareholders requested by
Shareholders in accordance with this Sub-Regulation. |
(b) | A Shareholder may revoke a request for a special meeting of Shareholders at any
time prior to the commencement of the meeting by written revocation delivered to the
Secretary, and if, following such revocation, there are un-revoked requests from
Shareholders holding in the aggregate less than 30 percent of the votes of the
outstanding Shares (being the requisite number of votes required for Shareholders to
requisition a special meeting of Shareholders in accordance with Sub-Regulation 8.4(a)
above), the directors, in their discretion, may elect to cancel or refuse to hold the
special meeting of Shareholders notwithstanding the fact that proxies may have been
received by the Company. |
8.5 | Written notice of all meetings of Shareholders, stating the time, place and, and in the case
of a special meeting of Shareholders, the purpose or purposes thereof, shall be given by the
Company pursuant to a Resolution of Directors not fewer than ten days before the date of the
proposed meeting to those persons whose names appear as Shareholders in the share register of
the Company on the date of the notice and are entitled to vote at the meeting. |
- 6 -
8.6 | The directors may fix the date notice is given of a meeting of Shareholders, or such other
date as may be specified in the notice, as the record date for determining those Shares that
are entitled to vote at the meeting. If no such date is specified in the notice, then the
date of the notice shall be the record date for determining those persons whose names appear
as Shareholders in the share register of the Company who are entitled to vote at the meeting. |
8.7 | Notwithstanding Sub-Regulation 8.5 above, a meeting of Shareholders may be called on less
than ten days notice: |
(a) | if Shareholders holding not less than 90 percent of the total number of Shares
entitled to vote on all matters to be considered at the meeting, or 90 percent of the
votes of each class or series of Shares where Shareholders are entitled to vote thereon
as a class or series together with not less than a 90 percent majority of the remaining
votes, have agreed to short notice of the meeting, or |
(b) | if all Shareholders holding Shares entitled to vote on all or any matters to be
considered at the meeting have waived notice of the meeting and for this purpose
presence at the meeting shall be deemed to constitute waiver. |
8.8 | The inadvertent failure of the directors to give notice of a meeting to a Shareholder, or the
fact that a Shareholder has not received notice, does not invalidate the meeting. |
8.9 | (a) | Pursuant to these Articles and to the extent permitted by law, any Shareholder of record
may appoint a person or persons to act as such Shareholders proxy or proxies at any meeting
of Shareholders for the purpose of representing and voting such Shareholders shares. An
instrument appointing a proxy shall be in any form which the directors may determine by
resolution or such other form as the chairman of the meeting shall accept. The instrument
appointing the proxy shall be filed with the Secretary or provided to the Company in
accordance with the procedures established for the meeting of Shareholders at which the person
named in such instrument proposes to vote in order to be counted in any vote at the meeting.
Prior to any vote, and subject to any contract rights of the proxy holder, a Shareholder may
revoke the proxy appointment either directly or by the creation of a new appointment, which
will automatically revoke the former one. |
(b) | Execution of the instrument appointing a proxy may be accomplished by the
Shareholder or such Shareholders authorised officer, director, employee or agent
signing such instrument by any reasonable means, including, but not limited to, by
facsimile signature. A Shareholder may authorise another person or persons to act for
such Shareholder as proxy by transmitting or authorising the transmission of such
communication evidencing the Shareholders intention to appoint a person or persons as
his proxy by means of a telegram, cablegram, or other means of electronic transmission
(including but not limited to, via internet or telephone) to the person who will be the
holder of the proxy or to a proxy solicitation firm, proxy support service organisation
or like agent duly authorised by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or the other
means of electronic transmission (which must be supported by printed evidence thereof)
must be either set forth or be submitted with written information from which it can be
determined that the telegram, cablegram or printed evidence of the other electronic
transmission was authorised by the Shareholder. Any copy, facsimile telecommunication
or other reliable reproduction of the writing or transmission created pursuant to this
Sub-Regulation 8.9(b) may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. |
- 7 -
(c) | The directors may, in advance of any meeting of Shareholders, appoint one or
more inspectors of election to act at the meeting or any adjournment thereof and to
make a written report thereof. If the person or persons so appointed fails to appear
or otherwise refuses to act, the chairman of the meeting may appoint one or more
alternative inspectors of election to act at the meeting. The inspector(s) of
election, if appointed, shall perform his or her duties impartially, in good faith, and
to the best of his or her ability. |
8.10 | The following applies where Shares are jointly owned: |
(a) | if two or more persons hold Shares jointly each of them may be present in
person or by proxy at a meeting of Shareholders and may speak as a Shareholder; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on
behalf of all joint owners; and |
(c) | if two or more of the joint owners are present in person or by proxy they must
vote as one. |
8.11 | In accordance with such limitations, restrictions, guidelines and procedures as may be
established by the directors by Resolution of Directors from time to time or by the chairman
of the meeting, a Shareholder shall be deemed to be present at a meeting of Shareholders if he
participates by telephone or other electronic means and all Shareholders participating in the
meeting are able to hear each other. |
8.12 | A meeting of Shareholders is duly constituted if, at the commencement of the meeting, there
are present in person or by proxy not less than 50% of the votes of the Shares entitled to
vote on the matters to be considered at the meeting. A valid quorum may be represented by
only a single Shareholder or proxy. A duly held meeting of Shareholders at which a quorum is
initially present may continue to transact business until adjournment notwithstanding the
withdrawal of enough Shares to leave less than a quorum. |
8.13 | (a) | If within half an hour (or such longer period as the chairman of the meeting in his
absolute discretion may decide) from the time appointed for the meeting of Shareholders a
quorum as required by Sub-Regulation 8.12 is not present, the meeting, if convened upon the
requisition of Shareholders pursuant to Sub-Regulation 8.4(a), may be dissolved by the
chairman of the meeting. In any other case, any meeting of Shareholders, annual or special,
whether or not a quorum is present, may be adjourned for any reason from time to time by
either (i) the chairman of the meeting or (ii) the Shareholders by the vote of the holders of
the majority of Shares represented at the meeting, either in person or by proxy, to such place
and time as the chairman of the meeting shall determine. In absence of a quorum at the
commencement of the meeting, no other business may be transacted at that meeting. |
(b) | When a meeting of Shareholders is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place, if any, thereof, and
the means of remote communications, if any, by which Shareholders and proxyholders may
be deemed
to be present in person and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken. However, if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, then notice of the adjourned meeting shall be given. For the
avoidance of doubt, a determination of the Shareholders of record entitled to vote
at a meeting of Shareholders shall apply to any adjournment of such meeting.
|
- 8 -
(c) | At any meeting of Shareholders so resumed after such adjournment, provided that
a quorum as required by Sub-Regulation 8.12 is present or represented at the
commencement of the adjourned meeting, any business may be transacted which might have
been transacted at the meeting as originally scheduled. |
8.14 | Any previously scheduled meeting of Shareholders may be postponed, and, except for a special
meeting of Shareholders called by the directors after receipt of a valid written request of
Shareholder holding at least 30 percent of the votes of the outstanding voting Shares pursuant
to Sub-Regulation 8.4(a) (which meeting may be cancelled only on the terms of Sub-Regulation
8.4(b)), the directors may by Resolution of Directors elect to cancel any previously scheduled
meeting of Shareholders upon public disclosure of such determination prior to the date
previously scheduled for such meeting, notwithstanding the fact that proxies for such meeting
may have been received by the Company. For the avoidance of doubt, a determination of the
Shareholders of record entitled to vote at a meeting of Shareholders shall apply to any
postponement of such meeting. |
8.15 | (a) | At any annual meeting of Shareholders, only proposals of business which have been made in
accordance with this Sub-Regulation shall be eligible to be brought before such meeting: |
(i) | by or at the direction of the Chairman of the Board or by Resolution of
Directors; |
(ii) | by any Shareholder who is a holder of record as of the record
date established for the meeting pursuant to Sub-Regulation 8.6 and who is
entitled to vote at the meeting and who complies with all of the requirements
and procedures set out in Sub-Regulation 8.16. |
(b) | At any special meeting of Shareholders, only such business shall be conducted
as shall have been brought before the meeting pursuant to the notice of meeting made
pursuant to Sub-Regulation 8.5. |
8.16 | (a) | For business to be properly brought before an annual meeting of Shareholders by a
Shareholder, such business must be a proper matter for Shareholder action and the Shareholder
must have given timely written notice thereof, either by personal delivery or by prepaid
registered post to the Secretary at the principal executive offices of the Company, which
notice must contain the information required by sub-clauses (i) to (viii) inclusive of this
Sub-Regulation 8.16(a). To be considered timely in connection with an annual meeting of
Shareholders, a Shareholders notice must be delivered to or received by the Secretary at the
principal executive offices of the Company not less than 60 days nor more than 90 days prior
to the anniversary date of the date (as specified in the Companys proxy materials for its
immediately preceding annual meeting of Shareholders) on which the Company first mailed its
proxy materials for its immediately preceding annual meeting of Shareholders; provided,
however, that in the event that the date of the annual meeting of Shareholders is called for a
date |
- 9 -
that
is not within 30 days of the one-year anniversary of the immediately preceding years annual meeting of
Shareholders, notice from a Shareholder shall also be considered timely if it is so
delivered or received not earlier than 90 days prior to such annual meeting nor
later than the later of (i) 60 days prior to such annual meeting of Shareholders or
(ii) the close of business on the tenth day following the day on which public
disclosure is first made of the date of such annual meeting of Shareholders. In no
event shall an adjournment or postponement of an annual meeting of Shareholders
commence a new time period (or extend any period) for the giving of a Shareholders
notice as described above. A Shareholders notice delivered to the Secretary
pursuant to Sub-Regulation 8.4(a) or this 8.16(a) shall set forth:
(i) | a brief description of the proposal or the business desired to
be brought before the meeting; |
(ii) | the full text of the proposal or business (including the full
text of any resolutions proposed for consideration, and, in the event that such
business includes a proposal to amend either the Memorandum or the Articles of
the Company, the full text of the proposed amendment) and such other
information regarding such proposal or business as would be required in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had such proposal or business been made by the Company; |
(iii) | the reasons for making the proposal or conducting such
business at the meeting; |
(iv) | the name and address of record of the Shareholder proposing
such proposal or business and the beneficial owner, if any, on whose behalf the
proposal is made; |
(v) | a representation that the Shareholder is a holder of record of
Shares in the Company entitled to vote at such meeting and that such
Shareholder intends to appear in person or by a proxy at the meeting to make
the proposal or propose the conduct of the business as specified in the notice;
|
- 10 -
(vi) | as to the Shareholder giving the notice and the beneficial
owner, if any, on whose behalf the proposal or business is to be brought, (a)
the number of any class or series of Shares or other Securities of the Company
which are owned, directly or indirectly, beneficially and of record by such
Shareholder and the beneficial owner, if any, on whose behalf the proposal or
business is to be brought including any derivative, swap, option, warrant,
convertible security, share appreciation right, or similar right or other
transaction with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any Shares or other Securities of the Company
or with a value derived in whole or in part from the value of any Shares or
other Securities of the Company, whether or not such instrument or right shall
be subject to settlement in the underlying class or series of Shares or other
Securities of the Company or otherwise (a Derivative Instrument) directly or
indirectly owned beneficially and of record by each such party, and any other
direct or indirect opportunity to profit or share in any profit derived from
any increase or decrease in the value of any Shares or other Securities of the
Company, (b) any proxy, contract, arrangement, understanding, or relationship
pursuant to which either party has a right to vote any Shares or other
Securities of the Company, (c) any short interest in any Shares or other
Securities of the Company held by each such party or any repurchase or stock
borrowing agreement or arrangement engaged in, directly
or indirectly, by each such party, (d) any rights to dividends on any Shares
or other Securities of the Company owned of record and beneficially by each
such party that are separated or separable from the underlying security of
the Company, (e) any proportionate interest in any Shares or other
Securities of the Company or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which either party is a
general partner or, directly or indirectly, beneficially owns an interest in
a general partner and (f) any performance-related fees (other than an
asset-based fee) that each such party is entitled to based on any increase
or decrease in the value of any Shares or other Securities of the Company or
Derivative Instruments, if any; in each case with respect to the above as of
the close of business on the date of such notice, including without
limitation any such interests held by members of each such partys immediate
family sharing the same household (which information set forth in this
paragraph shall be updated or supplemented by such Shareholder or such
beneficial owner, as the case may be, not later than five (5) business days
after the record date for the meeting to disclose such ownership as of the
close of business on the record date); |
(vii) | any material interest of such Shareholder and the beneficial
owner, if any, on whose behalf the proposal is made or such business is
proposed to be conducted, in such proposal or in conducting such business and a
description of all relationships, arrangements or understandings between the
Shareholder and the beneficial owner, if any, on whose behalf the proposal is
made or the proposed business is to be conducted; and |
(viii) | a representation as to whether the Shareholder or the beneficial owner, if
any, on whose behalf such proposal is made or such business is proposed to be
conducted intends, or is part of a group that intends, to (a) deliver a proxy
statement or form of proxy to holders of at least enough Shares reasonably
believed by such Shareholder or beneficial owner to be sufficient to approve or
adopt the proposal or to conduct the business being proposed (and such
representation shall be included in any such proxy statement or form of proxy)
and/or (b) otherwise to solicit proxies from Shareholders in support of such
proposal or business (and such representation shall be included in such
solicitation materials). |
(b) | Notwithstanding the foregoing or any other Sub-Regulation contained in the
Articles, nothing in Sub-Regulations 8.4, 8.15(a)(ii), 8.15(b) or 8.16(a) shall be
interpreted or construed to require the inclusion of information about any such
proposal or business in any proxy statement distributed by, at the direction of, or on
behalf of, the directors. The chairman of a meeting of Shareholders shall have the
power and the duty, if the facts so warrant, to determine and declare to the meeting
that any proposal or business was not properly brought before the meeting in accordance
with the provisions of Sub-Regulations 8.4, 8.15 or 8.16(a) and, if he should so
determine, he shall so declare to the meeting and any such proposal or business not
properly brought before the meeting shall not be voted on or transacted.
Notwithstanding anything contained elsewhere in these Articles, if a Shareholder has
notified the Secretary of his intention to present a proposal or business at a meeting
of Shareholders and such Shareholder does not appear or does not send a duly authorised
representative, as determined by the chairman of the meeting, to present such proposal
or business at such meeting, the Company need not present such proposal or business for
a vote at such meeting notwithstanding that proxies in respect of such vote may have
been received by the Company. Notwithstanding anything contained elsewhere in these
Articles, a Shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in Sub-Regulations 8.4,
8.15(a)(ii), 8.15(b) and 8.16(a). Nothing in these Articles shall be deemed to
affect any rights of Shareholders to request inclusion of proposals in the Companys
proxy statement pursuant to Regulation 14A under the Exchange Act.
|
- 11 -
8.17 | At every meeting of Shareholders, the Chairman of the Board shall preside as chairman of the
meeting. If there is no Chairman of the Board or if the Chairman of the Board is not present
at the meeting, the vice-Chairman of the Board shall be the chairman of the meeting. If there
is no vice-Chairman of the Board or if the vice-Chairman of the Board is not present at the
meeting, the chief executive officer shall be the chairman of the meeting. In the absence of
the chief executive officer, such other person as shall be selected by the Board prior to the
meeting shall act as chairman of the meeting, or if no such action was taken prior to the
meeting, the directors then present shall select one of their own to act as the chairman of
the meeting. Subject to these Articles, the directors may adopt by Resolution of Directors
such rules, procedures and regulations for the conduct of meetings of Shareholders as they
shall deem appropriate, including but not limited to: |
(a) | the establishment of an agenda or order of business for the meeting and other
matters pertaining to the conduct of the meeting; |
||
(b) | maintaining order at the meeting and the safety of those present, |
(c) | limitations on attendance at or participation in the meeting of Shareholders of
record, their duly authorized and constituted proxies or such other persons as the
directors or chairman of the meeting shall determine; |
(d) | restrictions on entry to the meeting after the time fixed for commencement
thereof; |
(e) | limitations on the time allotted to questions or comments by participants; and |
(f) | determining the manner of voting, including the regulation of the opening and
closing of the polls for voting and the matters which are to be voted on by ballot. |
Subject to these Articles and any Resolution of Directors, the chairman of the meeting of
Shareholders shall have the right and authority to prescribe rules, procedures and
regulations for the conduct of meetings of Shareholders as he shall deem appropriate
relating to the conduct of meetings of Shareholders, including but not limited to the
matters described in subparagraphs (a) through (f) above. Without limiting the foregoing,
the determination of whether any proposed proposal or business or the proposed nomination of
any person for election as a director sought to be brought before any meeting of
Shareholders is properly brought before a meeting shall be made by the chairman of the
meeting. If the chairman of the meeting determines that any proposed proposal or business
or proposed nomination is not properly brought before a meeting of the Shareholders, such
proposal or business will not be considered or conducted and any such nomination shall be
disregarded notwithstanding the fact that proxies in respect of such proposal, business or
nomination may have been received by the Company.
- 12 -
8.18 | At any meeting of the Shareholders the chairman of the meeting is responsible for deciding in
such manner as he considers appropriate whether any resolution proposed has been carried or
not and the result of his decision shall be announced to the meeting (including any
adjournment thereof) and recorded in the minutes of the meeting. If the chairman has any
doubt as to the
outcome of the vote on a proposed resolution, he shall cause a poll to be taken of all votes
cast upon such resolution. If the chairman fails to take a poll then any Shareholder
present in person or by proxy who disputes the announcement by the chairman of the result of
any vote may immediately following such announcement demand that a poll be taken and the
chairman shall cause a poll to be taken. The demand for a poll may be withdrawn. If a poll
is taken at any meeting, the result shall be announced to the meeting (including any
adjournment thereof) and recorded in the minutes of the meeting |
8.19 | Any person other than an individual shall be regarded as one Shareholder and may, by
resolution of its directors or other governing body of such person, authorize such person as
it thinks fit to act as its representative at any meeting of the Shareholders or meeting of
any class of Shareholders of the Company, and the person so authorized shall be entitled to
exercise the same powers on behalf of the person which he represents as that person could
exercise if it were an individual Shareholder. The right of any individual to speak for or
represent such Shareholder shall be determined by the law of the jurisdiction where, and by
the documents by which, the person is constituted or derives its existence. In case of doubt,
the directors or the chairman of any meeting of Shareholders may in good faith seek legal
advice regarding the right of any individual to speak for or represent such Shareholder and
unless and until a court of competent jurisdiction shall otherwise rule, the directors or the
chairman may rely and act upon such advice without incurring any liability to any Shareholder. |
8.20 | The chairman of any meeting at which a vote is cast by proxy or on behalf of any person other
than an individual may call for a notarially certified copy of such proxy or authority which
shall be produced within 7 days of being so requested or the votes cast by such proxy or on
behalf of such person shall be disregarded. |
8.21 | Directors of the Company may attend and speak at any meeting of Shareholders and at any
separate meeting of the holders of any class or series of Shares. |
8.22 | No business of the Company shall be conducted at a meeting of Shareholders except in
accordance with the provisions of this Regulation 8. |
9. | DIRECTORS |
9.1 | No person shall be appointed as a director, or nominated as a reserve director, of the
Company unless he has consented in writing to be a director or to be nominated as a reserve
director. |
9.2 | Subject to the rights of the holders of any series of Preferred Shares to elect directors
under specified circumstances, the number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a Resolution of Directors. |
9.3 | The directors may, by a Resolution of Directors, fix the emoluments of directors with respect
to services to be rendered in any capacity to the Company.
|
- 13 -
10. | APPOINTMENT AND RETIREMENT OF DIRECTORS |
10.1 | (a) | Subject to the provisions of the Memorandum or these Articles, the first directors of the
Company shall be appointed by the subscriber to the Memorandum, and thereafter, at the annual
meeting of Shareholders or at a special meeting of Shareholders if so called for such purpose
by the directors pursuant to a Resolution of Directors or pursuant to a Shareholder request
made in accordance with Sub-Regulation 8.4, the Shareholders shall
elect, by Resolution of Shareholders, directors to serve, in the case of the annual
meeting of Shareholders, for the term as set forth in Sub-Regulation 10.1(b) and in
the case of a special meeting of Shareholders called for such purpose by the
directors pursuant to a Resolution of Directors or pursuant to a Shareholder request
made in accordance with Sub-Regulation 8.4, for the term set forth in Sub-Regulation
10.1(c). |
Between the meetings of Shareholders, the directors may by Resolution of Directors fill any
vacancy on the Board or elect directors as set forth in Sub-Regulation 10.2.
(b) | With respect to directors elected at the annual meeting of Shareholders, other
than those directors who may be elected by the holders of any series of Preferred
Shares under specified circumstances: |
(i) | The directors are and shall be divided into three classes
hereinafter designated as A Directors, B Directors and C Directors. For the
avoidance of doubt, the numbers of directors in each class of directorship need
not be equal to the number of directors in any other class. |
(ii) | No director shall be elected without being designated either as
an A, B or C Director and each director (whether an A, B or C Director) shall
hold office within their class for a term of three years and until his
successor takes office or until his earlier death, resignation or removal from
office in accordance with these Articles or any applicable law. |
(iii) | At each annual meeting of Shareholders at which directors are
to be elected, the successors of the class of directors whose term expires at
that meeting shall be elected in accordance with these Articles. |
(iv) | Retiring directors shall be eligible for re-election. |
(c) | Any directors elected at a special meeting of Shareholders called for such
purpose by the directors pursuant to a Resolution of Directors or pursuant to a
Shareholder request made in accordance with Sub-Regulation 8.4, other than those
directors who may be elected by the holders of any series of Preferred Shares under
specified circumstances, shall |
(i) | be designated by Resolution of Directors as either an A, B or C
Director; and |
(ii) | hold office for the remainder of the full term of the class of
directorship in which a vacancy occurs or the additional director is elected
and until his successor takes office or until his earlier death, resignation or
removal from office in accordance with these Articles or any applicable law. |
10.2 | Subject to the rights of the holders of any series or class of Preferred Shares then
outstanding, between meetings of Shareholders, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from office or other
cause shall, unless otherwise required by law or by Resolution of Directors, be filled only by
a majority vote of the directors then in office, though less than a quorum, and directors so
chosen shall: |
(a) | be designated by Resolution of Directors as either an A Director, B Director or
C Director; and |
- 14 -
(b) | hold office for the remainder of the full term of the class of directorship in
which a vacancy occurs or in which the additional director was appointed and until his
successor takes office or until his earlier death, resignation or removal from office
in accordance with these Articles or any applicable law. |
10.3 | (a) | At any annual meeting of Shareholders for the election of directors, only persons who
have been nominated in accordance with this Sub-Regulation 10.3(a) shall be eligible for
election. Nominations shall only be made: |
(i) | by or at the direction of the directors; |
(ii) | by any Shareholder who is a holder of record as of the record
date established for the meeting pursuant to Sub-Regulation 8.6 and who is
entitled to vote at the meeting and who complies with all of the requirements
and procedures set out in Sub-Regulation 10.4. |
(b) | At any special meeting of Shareholders at which directors are to be elected
pursuant to the notice of such meeting, only persons who have been nominated in
accordance with this Sub-Regulation 10.3(b) shall be eligible for election.
Nominations shall only be made: |
(i) | by or at the direction of the directors; |
(ii) | by Shareholders holding at least 30 percent of the votes of the
outstanding Shares and who requested such meeting pursuant to Sub-Regulation
8.4(a), who are the holder(s) of record as of the record date established for
the meeting pursuant to Sub-Regulation 8.6 and who are entitled to vote at the
meeting and who complied with all of the requirements and procedures set out in
Sub-Regulation 8.4 with respect to such meeting; or |
(iii) | by any Shareholder who is a holder of record as of the record
date established for the meeting pursuant to Sub-Regulation 8.6 and who is
entitled to vote at the meeting and who delivers the written notice required by
sub-clauses (i) through (viii) of Sub-Regulation 10.4(a) to the Secretary at
the principal executive offices of the Company not earlier than 90 days prior
to such special meeting of Shareholders nor later than the later of (a) 60 days
prior to the date of such special meeting of Shareholders or (b) the close of
business on the tenth day following the day on which public disclosure is first
made of the date of such special meeting of Shareholders. Such Shareholder
shall also be required to provide the updated information as required by
subclause (vi) of Sub-Regulation 10.4(a). Furthermore, any such proposed
nominations must comply with, and shall be subject to, the requirements and
provisions of Sub-Regulation 10.4(b). |
For the purposes of this Sub-Regulation 10.3(b) and for the avoidance of
doubt, if any special meeting of the Shareholders has been adjourned or
postponed, no nominations by a Shareholder of persons to be elected
directors of the Company may be made at any such adjourned or postponed
meeting unless pursuant to a notice which was proper and timely for such
meeting on the date originally scheduled. |
- 15 -
10.4 | (a) | With respect to any director nominations made in accordance with Sub-Regulation
10.3(a)(ii) above, such nominations may only be made pursuant to a timely written notice
thereof, either by personal delivery or by prepaid registered post to the Secretary at the
principal executive offices of the Company, which notice must contain the information required
by sub-clauses (i) to (viii) inclusive of this Sub-Regulation 10.4(a). To be considered
timely in connection with an annual meeting of Shareholders, a Shareholders notice shall be
delivered to or received by the Secretary at the principal executive offices of the Company
not less than 60 days nor more than 90 days prior to the anniversary date of the date (as
specified in the Companys proxy materials for its immediately preceding annual meeting of
Shareholders) on which the Company first mailed its proxy materials for its immediately
preceding annual meeting of Shareholders; provided, however, that in the event that the date
of the annual meeting of Shareholders is called for a date that is not within 30 days of the
one-year anniversary of the immediately preceding years annual meeting of Shareholders,
notice from a Shareholder shall also be considered timely if it is so delivered or received
not earlier than 90 days prior to such annual meeting of Shareholders nor later than the later
of (i) 60 days prior to the date of such annual meeting of Shareholders or (ii) the close of
business on the tenth day following the day on which public disclosure is first made of the
date of such annual meeting of Shareholders. In no event shall an adjournment or postponement
of an annual meeting of Shareholders commence a new time period (or extend any period) for the
giving of a Shareholders notice as described above. A Shareholders notice delivered to the
Secretary pursuant to Sub-Regulation 8.4(a) or this 10.4(a) shall set forth: |
(i) | as to each nominee, the name, age, business address and
residence address of the person, the principal occupation or employment of the
person, the number of any class or series of Shares or other Securities of the
Company which are owned beneficially or of record by such nominee and such
other information regarding each nominee proposed by such Shareholder that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest or is otherwise required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; |
(ii) | the written consent of each nominee to serve as a director of
the Company if so elected; |
||
(iii) | the reasons for making the proposed nomination; |
(iv) | the name and address of record of the Shareholder who intends
to make the nomination and the beneficial owner, if any, on whose behalf the
nomination is made; |
(v) | a representation that the Shareholder is a holder of record of
Shares in the Company entitled to vote at such meeting and that the Shareholder
intends to appear in person or by a proxy at the meeting to nominate the
person(s) specified in the notice;
|
- 16 -
(vi) | as to the Shareholder giving the notice, and the beneficial
owner, if any, on whose behalf the nomination is made, (a) the number of any
class or series of Shares or other Securities of the Company which are owned,
directly or indirectly, beneficially and of record by such Shareholder and the
beneficial owner, if any, on whose behalf the nomination is made, including any
Derivative Instrument directly or indirectly owned beneficially and of record
by each such
party, and any other direct or indirect opportunity to profit or share in
any profit derived from any increase or decrease in the value of any Shares
or other Securities of the Company, (b) any proxy, contract, arrangement,
understanding, or relationship pursuant to which either party has a right to
vote any Shares or other Securities of the Company, (c) any short interest
in any Shares or other Securities of the Company held by each such party or
any repurchase or stock borrowing agreement or arrangement engaged in,
directly or indirectly, by each such party, (d) any rights to dividends on
any Shares or other Securities of the Company owned of record and
beneficially by each such party that are separated or separable from the
underlying security of the Company, (e) any proportionate interest in any
Shares or other Securities of the Company or Derivative Instruments held,
directly or indirectly, by a general or limited partnership in which either
party is a general partner or, directly or indirectly, beneficially owns an
interest in a general partner and (f) any performance-related fees (other
than an asset-based fee) that each such party is entitled to based on any
increase or decrease in the value of any Shares or other Securities of the
Company or Derivative Instruments, if any; in each case with respect to the
above as of the close of business on the date of such notice, including
without limitation any such interests held by members of each such partys
immediate family sharing the same household (which information set forth in
this paragraph shall be updated or supplemented by such Shareholder or such
beneficial owner, as the case may be, not later than five (5) business days
after the record date for the meeting to disclose such ownership as of the
close of business on the record date); |
(vii) | a description of all relationships, arrangements or
understandings among the Shareholder, the beneficial owner, if any, on whose
behalf the nomination is made and each nominee and any other person (naming
such person) pursuant to which the nominations are to be made by the
Shareholder; and |
(viii) | a representation as to whether the Shareholder or beneficial owner, if any,
on whose behalf the nomination is made intends, or is part of a group that
intends, to (a) to deliver a proxy statement or form of proxy to holders of at
least enough Shares reasonably believed by such Shareholder or beneficial owner
to be sufficient to elect the nominee (and such representation shall be
included in any such proxy statement or form of proxy) and/or (b) otherwise to
solicit proxies from Shareholders in support of such nomination (and such
representation shall be included in such solicitation materials). |
In addition to the above sub-clauses, in all cases the Company may require as a
condition to any nomination by Shareholder that a proposed nominee promptly furnish
to the Company such other information as it may reasonably require to determine (i)
the eligibility of such proposed nominee to serve as a director of the Company, and
(ii) whether such nominee qualifies as an independent director or audit committee
financial expert under applicable law, securities exchange rule or regulation, or
any corporate governance guideline, committee charter or the rules governing the
conduct and / or powers of any committee of the Company.
- 17 -
(b) | Notwithstanding the foregoing, nothing in Sub-Regulations 8.4, 10.3(a)(ii),
10.3(b)(ii), 10.3(b)(iii) or 10.4(a) shall be interpreted or construed to require the
inclusion of information about any director nominations in any proxy statement
distributed by, at the direction of, or on behalf of, the directors. The chairman of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing
procedures detailed in Sub-Regulations 8.4, 10.3(a)(ii), 10.3(b)(ii), 10.3(b)(iii)
or 10.4(a). Notwithstanding anything contained elsewhere in these Articles, if a
Shareholder has notified the Company of his intention to nominate a director at a
meeting of Shareholders and such Shareholder does not appear or send a qualified
representative, as determined by the chairman of the meeting, to present such
nomination at such meeting, the Company need not present such nomination for a vote
at such meeting notwithstanding that proxies in respect of such vote may have been
received by the Company. Notwithstanding anything contained elsewhere in these
Articles, a Shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations promulgated thereunder with respect to
the matters set forth in Sub-Regulations 8.4, 10.3(a)(ii), 10.3(b)(ii), 10.3(b)(iii)
or 10.4(a). |
(c) | If at any meeting of Shareholders at which an election of directors ought to
take place, the place of any retiring director is not filled, he shall, if willing,
continue in office until the dissolution of the annual meeting of Shareholders in the
next year, and so on from year to year until his place is filled, unless it shall be
determined at such meeting not to fill such vacancy. |
11. | DISQUALIFICATION AND REMOVAL OF DIRECTORS |
11.1 | Subject to the provisions of the Act, a director shall cease to hold office as such only: |
(a) | if he becomes of unsound mind and is removed by a resolution signed by all the
other directors; or |
(b) | if (unless he is not required to hold a Share qualification) he has not duly
qualified himself within two months of his appointment or if he ceases to hold the
required number of Shares to qualify him for office and is removed by a resolution
signed by all the other directors; or |
(c) | if he is absent from meetings of the directors for six consecutive months
without leave of the directors and is removed by a resolution signed by all the other
directors, provided that the directors shall have power to grant any director leave of
absence for any or an indefinite period; or |
||
(d) | if he dies; or |
(e) | if he has given to the Company notice in writing of his intention to resign and
such resignation shall be effective from the date such notice is received by the
Company or at such later date as may be specified in the notice; or |
(f) | if he shall, as a matter of law, be disqualified or cease to hold office or be
prohibited from acting as director then he shall be removed from office by a resolution
signed by all the other directors; or |
(g) | if he is removed from office by a resolution signed by all the other directors;
or |
(h) | if he is removed from office for cause by the affirmative vote of 662/3 percent
or more of the voting power of the then outstanding Shares entitled to vote thereon,
voting together as a single class, at a meeting of Shareholders called for the purpose
of removing the director or for the purposes including the removal of a director. For
the purposes of this Sub-Regulation 11.1(h), cause means the wilful and continuous
engaging over a
sustained period by the director in gross misconduct materially and demonstrably
injurious to the Company. |
- 18 -
12. | REGISTER OF DIRECTORS |
12.1 | The Company shall keep a register to be known as a register of directors, a copy of which
shall be kept at the registered office of the Company. The Company may determine by
Resolution of Directors to register a copy with the Registrar of Corporate Affairs. The
register of directors shall contain: |
(a) | the names and addresses of the persons who are directors of the Company; |
(b) | the date on which each person whose name is entered in the register was
appointed as director of the Company; and |
(c) | the date on which each person named as a director ceased to be a director of
the Company. |
13. | MANAGING DIRECTORS |
13.1 | The directors may from time to time and by Resolution of Directors appoint one or more of
their number to be a managing director or joint managing director and may, subject to any
contract between him or them and the Company, from time to time terminate his or their
appointment as a managing director or joint managing director and appoint another or others in
his or their place or places. |
13.2 | A director appointed pursuant to the terms of the provisions of Sub-Regulation 13.1 to the
office of managing director or joint managing director of the Company may be paid, in addition
to the remuneration payable in terms of Sub-Regulation 9.3, such remuneration not exceeding a
reasonable maximum in each year in respect of such office as may be determined by a resolution
of a majority of disinterested directors. |
13.3 | The directors may from time to time, by Resolution of Directors, entrust and confer upon a
managing director for the time being such of the powers and authorities vested in them as they
think fit, save that no managing director shall have any power or authority with respect to
the matters requiring a Resolution of Directors under the Act. |
14. | POWERS OF DIRECTORS |
14.1 | The business and affairs of the Company shall be managed by, or under the direction or
supervision of, the directors of the Company. The directors of the Company have all the
powers necessary for managing, and for directing and supervising, the business and affairs of
the Company. The directors may pay all expenses incurred preliminary to and in connection
with the incorporation of the Company and may exercise all such powers of the Company as are
not by the Act or by the Memorandum or the Articles required to be exercised by the
Shareholders. |
14.2 | Each director shall exercise his powers for a proper purpose and shall not act or agree to
the Company acting in a manner that contravenes the Memorandum, the Articles or the Act. Each
director, in exercising his powers or performing his duties, shall act honestly and in good
faith in what the director believes to be the best interests of the Company. |
- 19 -
14.3 | If the Company is the wholly owned subsidiary of a holding company, a director of the Company
may, when exercising powers or performing duties as a director, act in a manner which he
believes is in the best interests of the holding company even though it may not be in the best
interests of the Company. |
14.4 | Any director which is a body corporate may appoint any individual as its duly authorised
representative for the purpose of representing it at meetings of the directors, with respect
to the signing of consents or otherwise. |
|
14.5 | The continuing directors may act notwithstanding any vacancy in their body. |
14.6 | The directors may by Resolution of Directors exercise all the powers of the Company to incur
indebtedness, liabilities or obligations and to secure indebtedness, liabilities or
obligations whether of the Company or of any third party. |
14.7 | All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and
all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, in such manner as shall from time to time be
determined by Resolution of Directors. |
14.8 | For the purposes of Section 175 (Disposition of assets) of the Act, the directors may by
Resolution of Directors determine that any sale, transfer, lease, exchange or other
disposition is in the usual or regular course of the business carried on by the Company and
such determination is, in the absence of fraud, conclusive. |
15. | PROCEEDINGS OF DIRECTORS |
15.1 | Any one director of the Company may call a meeting of the directors by sending a written
notice to each other director. |
15.2 | The directors of the Company or any committee thereof may meet at such times and in such
manner and places within or outside the British Virgin Islands as the directors may determine
to be necessary or desirable. |
15.3 | A director is deemed to be present at a meeting of directors if he participates by telephone
or other electronic means and all directors participating in the meeting are able to hear each
other. |
15.4 | Notice of the time and place of meetings of the directors shall be (i) delivered personally
or by telephone (including a voice messaging system or other system or technology designed to
record and communicate messages), telegraph, facsimile, electronic mail, or other electronic
means, to each director at least forty-eight (48) hours before the time of the holding of the
meeting or (ii) sent by first-class mail at least three (3) days before the time of the
holding of the meeting, charges prepaid, addressed to each director at that directors address
as it is shown on the records of the Company. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly communicate it
to the director. A meeting of directors held without such prior notice having been given to
all directors shall be valid if, either before or after the meeting, all the directors
entitled to vote at the meeting who do not attend waive notice of the meeting, and for this
purpose the presence of a director at a meeting shall constitute waiver by that director. The
waiver of notice or consent need not specify the purpose of the meeting. The
inadvertent failure to give notice of a meeting to a director, or the fact that a director
has not received the notice, does not invalidate the meeting.
|
- 20 -
15.5 | A meeting of directors is duly constituted for all purposes if at the commencement of the
meeting there are present in person or by alternate not less than one-half of the total number
of directors, unless there are only 2 directors in which case the quorum is 2. |
15.6 | If the Company has only one director the provisions herein contained for meetings of
directors do not apply and such sole director has full power to represent and act for the
Company in all matters as are not by the Act, the Memorandum or the Articles required to be
exercised by the Shareholders. In lieu of minutes of a meeting the sole director shall record
in writing and sign a note or memorandum of all matters requiring a Resolution of Directors.
Such a note or memorandum constitutes sufficient evidence of such resolution for all purposes. |
15.7 | At meetings of directors at which the Chairman of the Board is present, he shall preside as
chairman of the meeting. If there is no Chairman of the Board or if the Chairman of the Board
is not present at the meeting, the vice-chairman of the board of directors shall be the
chairman of the meeting. If there is no vice-chairman of the Board or if the vice-chairman of
the board of directors is not present at the meeting, the chief executive officer shall be the
chairman of the meeting. In the absence of the chief executive officer, such other person as
shall be selected by the board of directors shall act as chairman of the meeting. |
15.8 | An action that may be taken by the directors or a committee of directors at a meeting may
also be taken by a resolution consented to in writing by three-quarters of the directors or by
two-thirds of the members of a committee of directors of the Company with three members or by
three-quarters of the members of a committee of directors of the Company other than those
committees with three members, as the case may be, without the need for any notice. The
consent may be in the form of counterparts each counterpart being signed by one or more
directors. If the consent is in one or more counterparts, and the counterparts bear different
dates, then the resolution shall take effect on the date upon which the last director has
consented to the resolution by signed counterparts. |
16. | COMMITTEES |
16.1 | The directors may, by Resolution of Directors, designate one or more committees, each
consisting of one or more directors, and delegate one or more of their powers, including the
power to affix the Seal, to the committee. |
16.2 | The directors have no power to delegate to a committee of directors any of the following
powers: |
(a) | to amend the Memorandum or the Articles; |
(b) | to designate committees of directors; |
(c) | to delegate powers to a committee of directors; |
(d) | to appoint or remove directors; |
(e) | to appoint or remove an agent; |
(f) | to approve a plan of merger, consolidation or arrangement; |
- 21 -
(g) | to make a declaration of solvency or to approve a liquidation plan; or |
(h) | to make a determination that immediately after a proposed Distribution the
value of the Companys assets will exceed its liabilities and the Company will be able
to pay its debts as they fall due. |
16.3 | Sub-Regulation 16.2(b) and (c) do not prevent a committee of directors, where authorised by
the Resolution of Directors appointing such committee or by a subsequent Resolution of
Directors, from appointing a sub-committee and delegating powers exercisable by the committee
to the sub-committee. |
16.4 | The meetings and proceedings of each committee of directors consisting of 2 or more directors
shall be governed mutatis mutandis by the provisions of the Articles regulating the
proceedings of directors so far as the same are not superseded by any provisions in the
Resolution of Directors establishing the committee. |
16.5 | Where the directors delegate their powers to a committee of directors they remain responsible
for the exercise of that power by the committee, unless they believed on reasonable grounds at
all times before the exercise of the power that the committee would exercise the power in
conformity with the duties imposed on directors of the Company under the Act. |
17. | OFFICERS AND AGENTS |
17.1 | The Company may by Resolution of Directors appoint officers of the Company at such times as
may be considered necessary or expedient. Such officers may consist of, a Chairman of the
Board of Directors, a vice-chairman of the board of directors, a chief executive officer or
one or more joint chief executive officers, a president or one or more joint presidents, a
chief operating officer or one or more joint chief operating officers, a chief financial
officer, one or more vice-presidents (executive, senior or other), secretaries and treasurers
and such other officers as may from time to time be considered necessary or expedient. Any
number of offices may be held by the same person. |
17.2 | The officers shall perform such duties as are prescribed at the time of their appointment
subject to any modification in such duties as may be prescribed thereafter by Resolution of
Directors. In the absence of any specific prescription of duties it shall be the
responsibility of the Chairman of the Board to preside at meetings of directors and
Shareholders, the vice-chairman of the board of directors to act in the absence of the
Chairman of the Board but otherwise to perform such duties as may be delegated to him by the
board of directors of the Company, the chief executive officer to manage and control the day
to day business and affairs of the Company, the president or joint presidents to act in the
absence of the chief executive officer but otherwise to perform such duties as may be
delegated to them by the board of directors of the Company or the chief executive officer, the
vice-presidents to act in order of seniority in the absence of the president but otherwise to
perform such duties as may be delegated to them by the board of directors, the chief executive
officer or the president or joint presidents, the secretaries to maintain the register of
Shareholders, minute books and records (other than financial records) of the Company and to
ensure compliance with all procedural requirements imposed on the Company by applicable law,
the chief financial officer to be responsible for the financial affairs of the Company and the
treasurer to act in the absence of the chief financial officer but otherwise to perform such
duties as may be delegated to him by the board of directors, the chief executive officer or
the president or joint presidents. The Board of Directors may from time to time delegate the
powers and duties of any officer to any other officers or agents, notwithstanding any
provision hereof. |
- 22 -
17.3 | The emoluments of all officers shall be fixed by Resolution of Directors. |
17.4 | The officers of the Company shall hold office until their successors are duly appointed, but
any officer appointed by the directors may be removed at any time, with or without cause, by
Resolution of Directors. Any vacancy occurring in any office of the Company may be filled by
Resolution of Directors. |
17.5 | The directors may, by Resolution of Directors, appoint any person, including a person who is
a director, to be an agent of the Company. |
17.6 | An agent of the Company shall have such powers and authority of the directors, including the
power and authority to affix the Seal, as are set forth in the Articles or in the Resolution
of Directors appointing the agent, except that no agent has any power or authority with
respect to the following: |
(a) | to amend the Memorandum or the Articles; |
||
(b) | to change the registered office or agent; |
||
(c) | to designate committees of directors; |
||
(d) | to delegate powers to a committee of directors; |
||
(e) | to appoint or remove directors; |
||
(f) | to appoint or remove an agent; |
||
(g) | to fix emoluments of directors; |
||
(h) | to approve a plan of merger, consolidation or arrangement; |
||
(i) | to make a declaration of solvency or to approve a liquidation plan; |
(j) | to make a determination that immediately after a proposed Distribution the
value of the Companys assets will exceed its liabilities and the Company will be able
to pay its debts as they fall due; or |
(k) | to authorise the Company to continue as a company incorporated under the laws
of a jurisdiction outside the British Virgin Islands. |
17.7 | The Resolution of Directors appointing an agent may authorise the agent to appoint one or
more substitutes or delegates to exercise some or all of the powers conferred on the agent by
the Company. |
17.8 | The directors may remove an agent appointed by the Company and may revoke or vary a power
conferred on him. |
18. | CONFLICT OF INTERESTS |
18.1 | A director of the Company shall, forthwith after becoming aware of the fact that he is
interested in a transaction entered into or to be entered into by the Company, disclose the
interest to all other directors of the Company. |
- 23 -
18.2 | For the purposes of Sub-Regulation 18.1, a disclosure to all other directors to the effect
that a director is a shareholder, director, member, partner, manager or officer of another
named entity or has a fiduciary relationship with respect to the entity or a named individual
and is to be regarded as interested in any transaction which may, after the date of the entry
into the transaction or disclosure of the interest, be entered into with that entity or
individual, is a sufficient disclosure of interest in relation to that transaction. |
18.3 | A director of the Company who is interested in a transaction entered into or to be entered
into by the Company may: |
(a) | vote on a matter relating to the transaction; |
(b) | attend a meeting of directors at which a matter relating to the transaction
arises and be included among the directors present at the meeting for the purposes of a
quorum; and |
(c) | sign a document on behalf of the Company, or do any other thing in his capacity
as a director, that relates to the transaction, |
and, subject to compliance with the Act shall not, by reason of his office be accountable to
the Company for any benefit which he derives from such transaction and no such transaction
shall be liable to be avoided on the grounds of any such interest or benefit.
19. | INDEMNIFICATION |
19.1 | Subject to the limitations hereinafter provided the Company shall, to the fullest extent
permitted by law, indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred in connection with
legal, administrative or investigative proceedings any person who is or was a director or
officer of the Company and who: |
(a) | is or was a party or is threatened to be made a party to any threatened,
pending or completed proceedings, whether civil, criminal, administrative or
investigative, by reason of the fact that the person is or was a director or officer of
the Company; or |
(b) | is or was, at the request of the Company, serving as a director or officer of,
or in any other capacity is or was acting for, another body corporate or a partnership,
joint venture, trust or other enterprise |
provided, however, that, except as provided in Sub-Regulation 19.11 with respect to
proceedings to enforce rights to indemnification, the Company shall indemnify any such
director or officer or former director or officer in connection with a proceeding (or part
thereof) initiated by such director or officer or former director or officer only if such
proceeding (or part thereof) was authorized by the Board of Directors of the Company.
19.2 | The indemnity in Sub-Regulation 19.1 only applies if the director or officer or former
director or officer acted honestly and in good faith with a view to the best interests of the
Company and, in the case of criminal proceedings, the person had no reasonable cause to
believe that their conduct was unlawful. |
19.3 | For the purposes of Sub-Regulation 19.2, a director or officer acts (or a former director or
officer acted) in the best interests of the Company if he acts (or acted) in the best
interests of |
- 24 -
(a) | the Companys holding company; or |
||
(b) | a Shareholder or Shareholders of the Company; |
in either case, in the circumstances specified in Section 120(2), (3) or (4) of the BVI
Business Companies Act, 2004 (No. 16 of 2004), as the case may be.
19.4 | The decision of the directors as to whether the person acted honestly and in good faith and
with a view to the best interests of the Company and as to whether the person had no
reasonable cause to believe that his conduct was unlawful is, in the absence of fraud,
sufficient for the purposes of the Articles, unless a question of law is involved. |
19.5 | The termination of any proceedings by any judgment, order, settlement, conviction or the
entering of a nolle prosequi or nolo contendere does not, by itself, create a presumption that
the person did not act honestly and in good faith and with a view to the best interests of the
Company or that the person had reasonable cause to believe that his conduct was unlawful. |
19.6 | Expenses, including legal fees, incurred by a director or officer in defending any legal,
administrative or investigative proceedings shall be paid by the Company in advance of the
final disposition of such proceedings upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it shall ultimately be determined that the director
or officer is not entitled to be indemnified by the Company in accordance with Sub-Regulation
19.1. However, the Company shall not be required to advance such expenses to a director or
officer who is a party to any legal, administrative or investigative proceedings brought by
the Company and approved by a majority of the directors which alleges wilful misappropriation
of corporate assets by such director or officer, wrongful disclosure of confidential
information or any other wilful and deliberate breach in bad faith of such persons duty to
the Company or its Shareholders. |
19.7 | Expenses, including legal fees, incurred by a former director or officer in defending any
legal, administrative or investigative proceedings shall be paid by the Company in advance of
the final disposition of such proceedings upon receipt of an undertaking by or on behalf of
the former director or officer to repay the amount if it shall ultimately be determined that
the former director or officer is not entitled to be indemnified by the Company in accordance
with Sub-Regulation 19.1 and upon such terms and conditions, if any, as the Company deems
appropriate. However, the Company shall not be required to advance such expenses to a former
director or officer who is a party to any legal, administrative or investigative proceedings
brought by the Company and approved by a majority of the directors which alleges wilful
misappropriation of corporate assets by such former director or officer, wrongful disclosure
of confidential information or any other wilful and deliberate breach in bad faith of such
former persons duty to the Company or its Shareholders. |
19.8 | The indemnification and advancement of expenses provided by, or granted pursuant to, this
Regulation 19 are not exclusive of any other rights to which the person seeking
indemnification or advancement of expenses may be entitled under any agreement, Resolution of
Shareholders, resolution of disinterested directors or otherwise, both as acting in the
persons official capacity and as to acting in another capacity while serving as a director or
officer of the Company. The Company may enter into a separate indemnification agreement with
any person who is or was serving as a director, officer, employee or agent of the Company, or
any person who is or was serving, at the request of the Company, as a director, officer,
employee or agent of, or in any other capacity is or was acting for, another body corporate or
a partnership, joint venture, trust or other enterprise. |
- 25 -
19.9 | If a person referred to in Sub-Regulation 19.1 has been successful in defense of any
proceedings referred to in Sub-Regulation 19.1, the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments, fines and amounts paid
in settlement and reasonably incurred by the person in connection with the proceedings. |
19.10 | The Company may purchase and maintain insurance in relation to any person who is or was a
director, officer, employee, agent or liquidator of the Company, or who at the request of the
Company is or was serving as a director, officer, employee, agent or liquidator of, or in any
other capacity is or was acting for, another body corporate or a partnership, joint venture,
trust or other enterprise, against any liability asserted against the person and incurred by
the person in that capacity, whether or not the Company has or would have had the power to
indemnify the person against the liability as provided in the Articles. |
19.11 | If a claim under Sub-Regulation 19.1, 19.6 or 19.7 is not paid in full by the Company within
forty-five (45) days after a written claim has been received by the Company, except in the
case of a claim for an advancement of expenses, in which case the applicable period shall be
thirty (30) days, any director or officer or former director or officer may at any time
thereafter bring suit against the Company to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the Company to
recover an advancement of expenses pursuant to the terms of an undertaking, such director or
officer or former director or officer shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by a director or officer or
former director or officer to enforce a right to indemnification hereunder (but not in a suit
brought by such person to enforce a right to an advancement of expenses) it shall be a defense
that, and (ii) in any suit brought by the Company against a director or officer or former
director or officer to recover an advancement of expenses pursuant to the terms of an
undertaking, the Company shall be entitled to recover such expenses upon a final adjudication
that, such person has not met any applicable standard for indemnification set forth in the BVI
Business Companies Act, 2004 (No. 16 of 2004). Neither the failure of the Company (including
its directors who are not parties to such action, a committee of such directors, independent
legal counsel, or its Shareholders) to have made a determination prior to the commencement of
such suit that indemnification of a director or officer or former director or officer is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in the BVI Business Companies Act, 2004 (No. 16 of 2004), nor an actual determination by
the Company (including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its Shareholders) that such person has not met such
applicable standard of conduct, shall create a presumption that such person has not met such
applicable standard of conduct or, in the case of such suit brought by a director or officer
or former director or officer, be a defense to such suit. In any suit brought by any director
or officer or former director or officer to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the person is not
entitled be indemnified, or to such advancement of expenses, under these Articles or otherwise
shall be on the Company. |
19.12 | The rights conferred in Regulation 19 shall be contract rights and such rights shall
continue as to an individual who has ceased to be a director or officer and shall inure to the
benefit of such individuals heirs, executors and administrators. Any amendment, alteration
or repeal of Regulation 19 that adversely affects any right of an individual or such
individuals successors shall be prospective only and shall not limit or eliminate any such
right with respect to any proceeding involving any occurrence or alleged occurrence of any
action or omission to act that took place prior to such amendment or repeal. |
- 26 -
20. | RECORDS |
|
20.1 | The Company shall keep the following documents at the office of its registered agent: |
(a) | the Memorandum and the Articles; |
||
(b) | the register of Shareholders, or a copy of the register of Shareholders; |
||
(c) | the register of directors, or a copy of the register of directors; and |
(d) | copies of all notices and other documents filed by the Company with the
Registrar of Corporate Affairs in the previous 10 years. |
20.2 | Until the directors determine otherwise by Resolution of Directors the Company shall keep the
original register of Shareholders and original register of directors at the office of its
registered agent. |
20.3 | If the Company maintains only a copy of the register of Shareholders or a copy of the
register of directors at the office of its registered agent, it shall: |
(a) | within 15 days of any change in either register, notify the registered agent in
writing of the change; and |
(b) | provide the registered agent with a written record of the physical address of
the place or places at which the original register of Shareholders or the original
register of directors is kept. |
20.4 | The Company shall keep the following records at the office of its registered agent or at such
other place or places, within or outside the British Virgin Islands, as the directors may
determine: |
(a) | minutes of meetings and Resolutions of Shareholders and classes of
Shareholders; and |
(b) | minutes of meetings and Resolutions of Directors and committees of directors. |
20.5 | Where any original records referred to in this Regulation are maintained other than at the
office of the registered agent of the Company, and the place at which the original records is
changed, the Company shall provide the registered agent with the physical address of the new
location of the records of the Company within 14 days of the change of location. |
20.6 | The records kept by the Company under this Regulation shall be in written form or either
wholly or partly as electronic records complying with the requirements of the Electronic
Transactions Act, 2001 (No. 5 of 2001) as from time to time amended or re-enacted. |
21. | REGISTER OF CHARGES |
The Company shall maintain at the office of its registered agent a register of charges in
which there shall be entered the following particulars regarding each mortgage, charge and
other encumbrance created by the Company:
(a) | the date of creation of the charge; |
(b) | a short description of the liability secured by the charge; |
- 27 -
(c) | a short description of the property charged; |
(d) | the name and address of the trustee for the security or, if there is no such
trustee, the name and address of the chargee; |
(e) | unless the charge is a security to bearer, the name and address of the holder
of the charge; and |
(f) | details of any prohibition or restriction contained in the instrument creating
the charge on the power of the Company to create any future charge ranking in priority
to or equally with the charge. |
22. | SEAL |
The Company shall have a Seal an impression of which shall be kept at the office of the
registered agent of the Company. The Company may have more than one Seal and references
herein to the Seal shall be references to every Seal which shall have been duly adopted by
Resolution of Directors. The directors shall provide for the safe custody of the Seal and
for an imprint thereof to be kept at the registered office. Except as otherwise expressly
provided herein the Seal when affixed to any written instrument shall be witnessed and
attested to by the signature of any one director or other person so authorised from time to
time by Resolution of Directors. Such authorisation may be before or after the Seal is
affixed, may be general or specific and may refer to any number of sealings. The directors
may provide for a facsimile of the Seal and of the signature of any director or authorised
person which may be reproduced by printing or other means on any instrument and it shall
have the same force and validity as if the Seal had been affixed to such instrument and the
same had been attested to as hereinbefore described.
23. | DISTRIBUTIONS BY WAY OF DIVIDEND |
23.1 | The directors of the Company may, by Resolution of Directors, authorise a Distribution by way
of dividend at a time and of an amount they think fit if they are satisfied, on reasonable
grounds, that, immediately after the Distribution, the value of the Companys assets will
exceed its liabilities and the Company will be able to pay its debts as they fall due. |
23.2 | Dividends may be paid in money, Shares, or other property. |
23.3 | All dividends unclaimed for 3 years after having been declared may be forfeited by Resolution
of Directors for the benefit of the Company. |
23.4 | No dividend shall bear interest as against the Company and no dividend shall be paid on
Treasury Shares. |
24. | ACCOUNTS AND AUDIT |
24.1 | The Company shall keep records that are sufficient to show and explain the Companys
transactions and that will, at any time, enable the financial position of the Company to be
determined with reasonable accuracy. |
24.2 | The Company may by Resolution of Directors call for the preparation periodically of, and may
make available, a profit and loss account and a balance sheet. The profit and loss account
and balance sheet shall be drawn up so as to give respectively a true and fair view of the
profit and
loss of the Company for a financial period and a true and fair view of the assets and
liabilities of the Company as at the end of a financial period. |
- 28 -
24.3 | The Company may by Resolution of Directors call for the accounts to be examined by auditors. |
24.4 | The first auditors shall be appointed by Resolution of Directors; subsequent auditors shall
be appointed by Resolution of Directors. |
24.5 | The auditors may be Shareholders, but no director or other officer shall be eligible to be an
auditor of the Company during their continuance in office. |
|
24.6 | The remuneration of the auditors of the Company may be fixed by Resolution of Directors. |
24.7 | The auditors shall examine each profit and loss account and balance sheet required to be
served on every Shareholder of the Company or laid before a meeting of the Shareholders of the
Company and shall state in a written opinion those items required by applicable accounting
standards or the rules and regulations applicable to the Company. |
24.8 | The report of the auditors shall be annexed to the accounts and shall be read at the meeting
of Shareholders at which the accounts are laid before the Company or shall be otherwise given
or made available to the Shareholders. |
24.9 | Every auditor of the Company shall have a right of access at all times to the books of
account and vouchers of the Company, and shall be entitled to require from the directors and
officers of the Company such information and explanations as he thinks necessary for the
performance of the duties of the auditors. |
24.10 | The auditors of the Company shall be entitled to receive notice of, and to attend any
meetings of Shareholders at which the Companys profit and loss account and balance sheet are
to be presented. |
25. | BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS |
25.1 | Notwithstanding anything contained in the Memorandum or these Articles, the Company shall not
engage in any business combination with any interested Shareholder for a period of 3 years
following the time that such Shareholder became an interested Shareholder unless: |
(a) | prior to such time the board of directors of the Company approved either the
business combination or the transaction which resulted in the Shareholder becoming an
interested Shareholder; |
(b) | upon consummation of the transaction which resulted in the Shareholder becoming
an interested Shareholder, the interested Shareholder owned at least 85% of the voting
Shares of the Company outstanding at the time the transaction commenced, excluding for
the purposes of determining the voting Shares outstanding (but not the outstanding
voting Shares owned by the interested Shareholder) those Shares owned (i) by persons
who are directors and also officers and (ii) employee share plans in which employee
participants do not have the right to determine confidentially whether Shares held
subject to the plan will be tendered in a tender or exchange offer; or |
- 29 -
(c) | at or subsequent to such time the business combination is approved by the board
of directors and authorized at any annual or special meeting of the Shareholders by the
affirmative vote of at least 662/3% of the outstanding voting Shares which are not owned
by the interested Shareholder. |
25.2 | The restrictions set forth in Sub-Regulation 25.1 shall not apply if: |
(a) | Subject to the terms of the Memorandum, the Company by Resolution of Directors
or a Resolution of Shareholders adopts an amendment to the Articles expressly electing
not to be governed by this Regulation 25 or otherwise deletes this Regulation 25;
provided that, such amendment of this Regulation 25 shall be effected in such a way as
to ensure that it shall not be effective or operative until 12 months after the
adoption of such amendment and shall not apply to any business combination between the
Company and any Eligible Person who became an interested Shareholder of the Company on
or prior to such adoption. |
(b) | The Company does not have a class of voting Shares that is: (i) listed on a
national securities exchange; (ii) authorized for quotation on The NASDAQ Stock Market;
or (iii) held of record by more than 2,000 Shareholders, unless any of the foregoing
results from action taken, directly or indirectly, by an interested Shareholder or from
a transaction in which a person becomes an interested Shareholder. |
(c) | A Shareholder becomes an interested Shareholder inadvertently and (i) as soon
as practicable divests itself of ownership of sufficient Shares so that the Shareholder
ceases to be an interested Shareholder; and (ii) would not, at any time within the
3-year period immediately prior to a business combination between the Company and such
Shareholder, have been an interested Shareholder but for the inadvertent acquisition of
ownership. |
(d) | The business combination is proposed prior to the consummation or abandonment
of and subsequent to the earlier of the public announcement or the notice required
hereunder of a proposed transaction which (i) is with or by a Eligible Person who
either was not an interested Shareholder during the previous 3 years or who became an
interested Shareholder with the approval of the board of directors of the Company or
during a period described in Sub-Regulation 25.2(d), (ii) is approved or not opposed by
a majority of the directors then in office (but not less than 1) who were directors
prior to any Eligible Person becoming an interested Shareholder during the previous 3
years or were recommended for election or elected to succeed such directors by a
majority of such directors, and (iii) constitutes one of the following transactions: |
A | a merger or consolidation of the Company (except for a
specified merger); |
||
B | a sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in 1 transaction or a series of transactions), whether as part of
a dissolution or otherwise, of assets of the Company or any direct or indirect
majority-owned subsidiary of the Company (other than to any direct or indirect
wholly-owned subsidiary or to the Company) having an aggregate market value
equal to 50% or more of either the market value of all of the assets of the
Company determined on a consolidated basis or the aggregate market value of all
the outstanding Shares of the Company; or |
- 30 -
C | a proposed tender or exchange offer for 50% or more of the
outstanding voting Shares of the Company. |
The Company shall give not less than 20 days notice to all interested Shareholders
prior to the consummation of any of the transactions described in Sub-Regulations
25.2(d)(iii)(A) and (B).
(e) | The business combination is with an interested Shareholder who became an
interested Shareholder at a time when the restrictions contained in this Regulation 25
did not apply by reason of an amendment pursuant to Sub-Regulation 25.2(a) or 25.2(b)
or at the time of registration by the Registrar of the notice of adoption of the
Articles, which set forth this Regulation 25. |
25.3 | As used in this Regulation 25 only, the term: |
(a) | affiliate means an Eligible Person that directly, or indirectly through 1 or
more intermediaries, controls, or is controlled by, or is under common control with,
another Eligible Person. |
(b) | associate, when used to indicate a relationship with any person, means: (i)
any corporation, partnership, unincorporated association or other entity of which such
person is a director, officer or partner or is, directly or indirectly, the owner of
20% or more of any class of voting stock or voting Shares; (ii) any trust or other
estate in which such person has at least a 20% beneficial interest or as to which such
person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or
spouse of such person, or any relative of such spouse, who has the same residence as
such person. |
(c) | business combination, when used in reference to the Company and any
interested Shareholder of the Company, means: |
(i) | Any merger or consolidation of the Company or any direct or
indirect majority-owned subsidiary of the Company with (A) the interested
Shareholder, or (B) with any other corporation, partnership, unincorporated
association or other entity if the merger or consolidation is caused by the
interested Shareholder and as a result of such merger or consolidation
Sub-Regulation 25.1 is not applicable to the surviving entity; |
(ii) | Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in 1 transaction or a series of transactions), except
proportionately as a Shareholder of the Company, to or with the interested
Shareholder, whether as part of a dissolution or otherwise, of assets of the
Company or of any direct or indirect majority-owned subsidiary of the Company
which assets have an aggregate market value equal to 10% or more of either the
aggregate market value of all the assets of the Company determined on a
consolidated basis or the aggregate market value of all the outstanding Shares
of the Company;
|
- 31 -
(iii) | Any transaction which results in the issuance or transfer by
the Company or by any direct or indirect majority-owned subsidiary of the
Company of any Shares of the Company or of such subsidiary to the interested
Shareholder, except: (A) pursuant to the exercise, exchange or conversion of
securities exercisable for, exchangeable for or convertible into Shares of the
Company or any such subsidiary which
securities were outstanding prior to the time that the interested Shareholder
became such; (B) pursuant to a merger of the Company with or into a single
direct or indirect wholly-owned subsidiary of the Company; (C) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or conversion
of securities exercisable for, exchangeable for or convertible into Shares of
the Company or any such subsidiary which security is distributed, pro rata to
all holders of a class or series of Shares of the Company subsequent to the
time the interested Shareholder became such; (D) pursuant to an exchange offer
by the Company to purchase Shares made on the same terms to all holders of said
Shares; or (E) any issuance, cancellation, redemption, buy back or transfer of
Shares by the Company; provided however, that in no case under items (C)-(E) of
this Sub-Regulation shall there be an increase in the interested Shareholders
proportionate share of the Shares of any class or series of the Company or of
the voting Shares of the Company; |
(iv) | Any transaction involving the Company or any direct or indirect
majority-owned subsidiary of the Company which has the effect, directly or
indirectly, of increasing the proportionate share of the Shares of any class or
series, or securities convertible into the Shares of any class or series, of
the Company or of any such subsidiary which is owned by the interested
Shareholder, except as a result of immaterial changes due to fractional share
adjustments or as a result of any purchase or redemption of any Shares not
caused, directly or indirectly, by the interested Shareholder; or |
(v) | Any receipt by the interested Shareholder of the benefit,
directly or indirectly (except proportionately as a Shareholder of the
Company), of any loans, advances, guarantees, pledges or other financial
benefits (other than those expressly permitted in subparagraphs (i)-(iv) of
this Sub-Regulation) provided by or through the Company or any direct or
indirect majority-owned subsidiary of the Company. |
(d) | control, including the terms controlling, controlled by and under common
control with, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of an Eligible Person, whether
through the ownership of voting Shares, by contract or otherwise. An Eligible Person
who is the owner of 20% or more of the outstanding voting stock of any corporation,
partnership, unincorporated association or other entity shall be presumed to have
control of such entity, in the absence of proof by a preponderance of the evidence to
the contrary; notwithstanding the foregoing, a presumption of control shall not apply
where such Eligible Person holds voting stock, in good faith and not for the purpose of
circumventing this section, as an agent, bank, broker, nominee, custodian or trustee
for 1 or more owners who do not individually or as a group have control of such entity. |
(e) | interested Shareholder means any Eligible Person (other than the Company and
any direct or indirect majority-owned subsidiary of the Company) that (i) is the owner
of 15% or more of the outstanding voting Shares of the Company, or (ii) is an affiliate
or associate of the Company and was the owner of 15% or more of the outstanding voting
Shares of the Company at any time within the 3-year period immediately prior to the
date on which it is sought to be determined whether such Eligible Person is an
interested Shareholder, and the affiliates and associates of such Eligible Person;
provided, however, that the term interested Shareholder shall not include (x) any
Eligible Person who (A) owned Shares in excess of the 15% limitation set forth herein
as of, or acquired such Shares pursuant to a tender offer commenced prior to, the date |
- 32 -
of
registration by the Registrar of the notice of adoption of the Articles, which set forth this Regulation
25, or pursuant to an exchange offer announced prior to the aforesaid date and
commenced within 90 days thereafter and either (I) continued to own Shares in excess
of such 15% limitation or would have but for action by the Company or (II) is an
affiliate or associate of the Company and so continued (or so would have continued
but for action by the Company) to be the owner of 15% or more of the outstanding
voting Shares of the Company at any time within the 3-year period immediately prior
to the date on which it is sought to be determined whether such Eligible Person is
an interested Shareholder or (B) acquired said Shares from an Eligible Person
described in item (A) of this paragraph by gift, inheritance or in a transaction in
which no consideration was exchanged; or (y) any Eligible Person whose ownership of
Shares in excess of the 15% limitation set forth herein is the result of action
taken solely by the Company; provided that such Eligible Person shall be an
interested Shareholder if thereafter such Eligible Person acquires additional Shares
of voting Shares of the Company, except as a result of further corporate action not
caused, directly or indirectly, by such Eligible Person. For the purpose of
determining whether an Eligible Person is an interested Shareholder, the voting
Shares of the Company deemed to be outstanding shall include Shares deemed to be
owned by the Eligible Person through application of Sub-Regulation 25.3(i) but shall
not include any other unissued Shares of the Company which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise. Any determination made by the Board of
Directors as to whether any Eligible Person is or is not an interested Shareholder
shall be conclusive and binding upon all Shareholders of the Company.
(f) | owner, including the terms own and owned, when used with respect to any
Shares of the Company, means an Eligible Person that individually or with or through
any of its affiliates or associates: |
(i) | beneficially owns such Shares, directly or indirectly; or |
(ii) | has (A) the right to acquire such Shares (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided, however,
that an Eligible Person shall not be deemed the owner of Shares tendered
pursuant to a tender or exchange offer made by such Eligible Person or any of
such Eligible Persons affiliates or associates until such tendered Shares is
accepted for purchase or exchange; or (B) the right to vote such Shares
pursuant to any agreement, arrangement or understanding; provided, however,
that an Eligible Person shall not be deemed the owner of any Shares because of
such Eligible Persons right to vote such Shares if the agreement, arrangement
or understanding to vote such Shares arises solely from a revocable proxy or
consent given in response to a proxy or consent solicitation made to 10 or more
Eligible Persons; or |
(iii) | has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (B) of subparagraph (ii) of this
paragraph), or disposing of such Shares with any other Eligible Person that
beneficially owns, or whose affiliates or associates beneficially own, directly
or indirectly, such Shares. |
- 33 -
(g) | specified merger means a merger in connection with which all of the following
conditions are satisfied: (1) the agreement of merger does not amend in any respect
the Memorandum or Articles of the Company, (2) each Share outstanding immediately prior
to the effective date of the merger is an identical outstanding or treasury share of
the surviving company after the effective date of the merger, and (3) either no Shares
of the surviving company and no shares, securities or obligations convertible into such
Shares are to be issued or delivered under the plan of merger, or the authorized
unissued Shares or the treasury Shares of the surviving company to be issued or
delivered under the plan of merger plus those initially issuable upon conversion of any
other shares, securities or obligations to be issued or delivered under such plan do
not exceed 20% of the Shares of the Company outstanding immediately prior to the
effective date of the merger. |
(h) | voting Shares means Shares of any class or series entitled to vote generally
in the election of directors of the Company. Every reference to a percentage of voting
Shares shall refer to such percentage of the votes of such voting Shares. |
(i) | voting stock means, with respect to any corporation, stock of any class or
series entitled to vote generally in the election of directors and, with respect to any
entity that is not a corporation, any equity interest entitled to vote generally in the
election of the governing body of such entity. Every reference to a percentage of
voting stock shall refer to such percentage of the votes of such voting stock. |
26. | NOTICES |
26.1 | Any notice, information or written statement to be given by the Company to Shareholders may
be served in the case of Shareholders holding registered Shares in any way by which it can
reasonably be expected to reach each Shareholder of by mail addressed to each Shareholder at
the address shown in the share register. |
26.2 | Any summons, notice, order, document, process, information or written statement to be served
on the Company may be served by leaving it, or by sending it by registered mail addressed to
the Company, at its registered office, or by leaving it with, or by sending it by registered
mail to, the registered agent of the Company. |
26.3 | Service of any summons, notice, order, document, process, information or written statement to
be served on the Company may be proved by showing that the summons, notice, order, document,
process, information or written statement was delivered to the registered office or the
registered agent of the Company or that it was mailed in such time as to admit to its being
delivered to the registered office or the registered agent of the Company in the normal course
of delivery within the period prescribed for service and was correctly addressed and the
postage was prepaid. |
27. | VOLUNTARY LIQUIDATION |
The Company may by the affirmative vote of the holders of 662/3 percent or more of the voting
power of the then outstanding Shares entitled to vote as a class thereon, voting together as
a single class or by Resolution of Directors appoint a voluntary liquidator provided that as
a prior condition to such Resolution of Shareholders the Board of Directors have approved
the appoint of the voluntary liquidator.
28. | CONTINUATION |
The Company may by Resolution of Shareholders or by a resolution passed unanimously by all
directors of the Company continue as a company incorporated under the laws of a jurisdiction
outside the British Virgin Islands in the manner provided under those laws.
- 34 -