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Exhibit
3.1
TERRITORY
OF THE BRITISH VIRGIN ISLANDS
BVI
BUSINESS COMPANIES ACT, 2004
MEMORANDUM
OF ASSOCIATION
OF
Stop Sleep Go Inc
A
company limited by shares
NAME
1.
The name of the Company is Stop Sleep Go
Inc
TYPE
OF COMPANY
2.
The Company is a
company limited by shares.
REGISTERED
OFFICE
3.
The first
registered office of the Company is at Vanterpool Plaza,
2nd Floor,
Wickhams Cay I, Road Town, Tortola, British Virgin Islands, the
office of the first registered agent.
REGISTERED
AGENT
4.
The first
registered agent of the Company is Icaza, Gonzalez-Ruiz &
Aleman (BVI) Trust Limited of Vanterpool Plaza, 2nd Floor, Wickhams Cay
I, Road Town, Tortola, British Virgin Islands.
CAPACITY
AND POWERS
5.
Subject to the Act
and any other British Virgin Islands legislation, the Company has,
irrespective of corporate benefit:
(a)
full capacity to
carry on or undertake any business or activity, do any act or enter
into any transaction; and
(b)
for the purposes of
paragraph (a), full rights, powers and privileges.
6.
For the purposes of
section 9(4) of the Act, the company may not
(a)
carry on banking or
trust company business unless it is licensed under the Banks and
Trusts Companies Act, (Amended 2006);
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(b)
carry on business
as an insurance or reinsurance company, insurance agent or
insurance broker, unless it is licensed under an enactment
authorizing it to carry on that business;
(c)
carry on the
business of company management unless it is licensed under the
Company Management Act, (Amended 2006);
(d)
carry on business
of providing the registered office or registered agent for
companies incorporated in the British Virgin Islands.
CURRENCY
7.
Shares in the
Company shall be issued in the currency of the United States of
America.
NUMBER
AND PAR VALUE OF SHARES
8.
The Company is
authorised to issue a maximum of 400,000,000 shares of US$0.00025 par value each.
CLASSES
OF SHARES
9.
The Shares will be
divided into such number of Classes and series as the directors
shall by resolution of directors from time to time determine and
until so divided shall comprise one class and series.
FRACTIONAL
SHARES
10.
The Company may
issue fractional Shares and a fractional Share shall have the
corresponding fractional rights, obligations and liabilities of a
whole share of the same class or series of shares.
DESIGNATIONS,
POWERS, PREFERENCES, ETC. OF SHARES
11.
Each Share in
the Company confers upon the Shareholder:
(a)
the right to one
vote at a meeting of the Shareholders of the Company or on any
Resolution of Shareholders;
(b)
the right to an
equal share in any dividend paid by the Company; and
(c)
the right to an
equal share in the distribution of the surplus assets of the
Company on its liquidation
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VARIATION OF CLASS RIGHTS
12.
If at any time,
there are different classes or series of Shares in issue, unless
otherwise provided by the terms of issue of the Shares of that
class or series, the rights attaching to any such class or series
of Shares may, whether or not the Company is being wound up, be
varied with the consent in writing of the holders of not less than
three-fourths of the issued Shares of that class or series and of
the holders of not less than three-fourths of the issued Shares of
any other class or series of Shares which may be adversely affected
by such variation.
RIGHTS
NOT VARIED BY THE ISSUE OF SHARES PARI-PASSU
13.
The rights
conferred upon the holders of the Shares of any class issued with
preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the Shares of that class, be
deemed to be varied by the creation or issue of further Shares
ranking pari passu therewith.
REGISTERED
SHARES
14.
The Company shall
issue registered shares only. The Company is not authorised to
issue bearer shares, convert registered shares to bearer shares or
exchange registered shares for bearer shares
AMENDMENT
OF MEMORANDUM AND ARTICLES
15.
Subject to Section
11, the Company may amend its Memorandum or Articles by a
Resolution of Shareholders or by a Resolution of Directors, save
that no amendment may be made by a Resolution of
Directors:
(i).
to restrict the
rights or powers of the Shareholders to amend the Memorandum or
Articles;
(ii).
to change the
percentage of Shareholders required to pass a Resolution of
Shareholders to amend the Memorandum or Articles;
(iii).
in circumstances
where the Memorandum or Articles cannot be amended by the
Shareholders; or
(iv).
to Clauses 11, 12,
13 and this Clause 15
DEFINITIONS
16.
Words used in this
Memorandum and not defined herein shall have the meanings set out
in the Articles.
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We,
ICAZA, GONZALEZ-RUIZ & ALEMAN
(BVI) TRUST LIMITED of Vanterpool Plaza, 2nd Floor, Wickhams
Cay I, Road Town, Tortola, British Virgin Islands for the purpose
of incorporating a BVI Business Company under the laws of the
British Virgin Islands hereby sign these Memorandum of Association
this 13th
day of July, 2012.
Incorporator
_______________________________
Gian
Carlo Pedreschi T.
Authorised
Signatory
Icaza, Gonzalez-Ruiz & Aleman (BVI) Trust Limited
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TERRITORY
OF THE BRITISH VIRGIN ISLANDS
BVI
BUSINESS COMPANIES ACT, 2004
ARTICLES
OF ASSOCIATION
OF
Stop
Sleep Go Inc
A company limited by shares
DEFINITIONS
AND INTERPRETATION
1.
In these Articles,
where the context permits, the following terms shall have the
following meanings:
"Act" means the BVI Business Companies
Act, 2004, including any modification, amendment, extension,
re-enactment or renewal thereof and any regulations made
thereunder;
"Articles" means these Articles of
Association as originally framed or as from time to time amended or
restated;
“Board” means the Board of
Directors of the Company;
“Directors” means the Directors or
any one of them of the Company for the time being;
“Distribution” means, in relation
to a distribution by the Company to a Shareholder, the direct or
indirect transfer of an asset, other than Shares, to or for the
benefit of the Shareholder in relation to the Shares held by it,
and whether by means of a purchase of an asset, the redemption or
other acquisition of Shares, a distribution of indebtedness or
otherwise, and includes a dividend;
"Fractional Share" has the meaning given
to that term in the Memorandum;
"Memorandum" means the Memorandum of
Association of the Company as originally framed or as from time to
time amended or restated;
"Person" means an individual, a
corporation, a trust, the estate of a deceased individual, a
partnership or an unincorporated association;
“Register of Shareholders” means
the register of the holders of Shares maintained in accordance with
section 41 of the Act;
"Resolution of Directors”
means:
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(a)
a resolution
approved at a duly convened and constituted meeting of Directors or
of a committee of Directors, by the affirmative vote of a simple
majority of the Directors present at the meeting who voted and did
not abstain; or
(b)
a resolution
consented to in writing by all the Directors or all the member of a
committee of Directors, as the case may be,
where a
Director is given more than one vote in any circumstances, he shall
in the circumstances be counted for the purposes of establishing a
majority, by the number of votes he casts;
"Resolution of Shareholders" means, unless otherwise defined in
the Memorandum or these Articles:
(a)
a resolution
approved at a duly convened and constituted meeting of the
Shareholders by the affirmative vote of:
(i)
a majority of the
votes of the Shares that were present at the meeting and entitled
to vote thereon and were voted and did not abstain; or
(ii)
a majority of the
votes of each class or series of Shares which were present at the
meeting and entitled to vote thereon as a class and were voted and
not abstained; or
(b)
a resolution
consented to in writing by:
(i)
a majority of the
votes of Shares entitled to vote thereon and were voted and did not
abstain; or
(ii)
a majority of the
votes of each class or series of Shares entitled to vote thereon as
a class and were voted and not abstained,
where a
Shareholder is given more than one vote in any circumstances, he
shall in the circumstances be counted for the purposes of
establishing a majority, by the number of votes he
casts;
"Seal" means any seal which has been
adopted as the common seal of the Company;
"securities" means Shares and debt
obligations of every kind, options, warrants and rights to acquire
Shares or debt obligations;
"Shareholder” means a person whose name is entered in
the Register of Shareholders as the holder of one or more Shares or
Fractional Shares;
“Share” means a Share issued or to
be issued by the Company including Fractional Shares;
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"Treasury Shares" means Shares that were previously
issued but were repurchased, redeemed or otherwise acquired by the
Company and not cancelled; and
"written" or any term of like import
includes words typewritten, printed, painted, engraved,
lithographed, photographed or represented or reproduced by any mode
of representing or reproducing words in a visible form, including
telex, telegram, facsimile, electronic mail or other form of
writing produced by electronic communication and
“in writing”
shall be construed accordingly .
2.
Save as aforesaid
any words or expressions defined in the Act shall bear the same
meaning in these Articles.
3.
Whenever the
singular or plural number, or the masculine, feminine or neuter
gender is used in these Articles, it shall equally, where the
context admits, include the others.
4.
A reference in
these Articles to voting in relation to Shares shall be construed
as a reference to voting by Shareholders except that it is the
votes allocated to the Shares that shall be counted and not the
number of Shareholders who actually voted and a reference to Shares
being present at a meeting shall be given a corresponding
construction.
5.
A reference to
money in these Articles is, unless otherwise stated, a reference to
the currency in which Shares shall be issued according to the
provisions of the Memorandum.
REGISTERED
SHARES
6.
Every Shareholder
is entitled to a certificate signed by a director of the Company or
under the Seal specifying the number of Shares held by him and the
signature of the director and the Seal may be
facsimiles.
7.
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 a Resolution of Directors.
8.
If several persons
are registered as joint holders of any Shares, any one of such
Persons may give an effectual receipt for any
Distribution.
SHARES
9.
Subject to the
provision in these Articles the unissued Shares shall be at the
disposal of the Directors who may, without limiting or affecting
any rights previously conferred to the holders of any existing
Shares or class of shares, offer, allot, grant options over or
otherwise dispose of the Shares to such persons, at such times, for
such consideration and upon such terms and conditions as they may
by a Resolution of Directors determine.
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10.
Section 46 of the
Act (Pre-emptive rights) shall not apply to the
Company.
11.
The Company may
issue bonus shares, partly paid shares and nil paid
shares.
12.
A Share may be
issued for consideration in any form, including money, a promissory
note, real property, personal property (including goodwill and
know-how) or a contract for future services.
13.
When the
consideration in respect of a Share has been paid, that Share is
for all purposes fully paid and non-assessable, but where a Share
is not fully paid on issue, or is issued for a promissory note or
other written obligation for payment of a debt those shares are
subject to forfeiture in the manner prescribed in the
Articles.
14.
Shares 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 Share issued with par value, the consideration paid or
payable shall not be less than the par value.
15.
No Shares may be
issued for a consideration other than money, unless a Resolution of
Directors has been passed stating:
(i)
the amount to be
credited for the issue of the Shares;
(ii)
their determination
of the reasonable present cash value of the non-money consideration
for the issue; and
(iii)
that, in their
opinion, the present cash value of the non-money consideration for
the issue is not less than the amount to be credited for the issue
of the Shares.
16.
The Company shall
keep a register (the “register of members”)
containing:
(i)
the names and
addresses of the persons who hold Shares;
(ii)
the number of each
class and series of Shares held by each Shareholder;
(iii)
the date on which
the name of each Shareholder was entered in the register of
members; and
(iv)
the date on which
any person ceased to be a Shareholder.
17.
The register of
members may be in any such form as the directors may approve, but
if it is in magnetic, electronic or other data storage form, the
Company must be able to produce legible evidence of its contents.
Until the directors otherwise determine, the magnetic, electronic
or other data storage form shall be the original register of
members.
18.
A Share is deemed
to be issued when the name of the Shareholder is entered in the
register of members.
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MORTGAGES
AND CHARGES OF SHARES
19.
Shareholders may
mortgage or charge their Shares in the Company and upon
satisfactory evidence thereof the Company shall give effect to the
terms of any valid mortgage or charge except in so far as it may
conflict with any requirements herein contained for consent to the
transfer of Shares.
20.
In the case of the
mortgage or charge of registered Shares there may be entered in the
Register of Shareholders of the Company:
(a)
a statement that
the Shares are mortgaged or charged;
(b)
the name of the
mortgagee or chargee; and
(c)
the date on which
the aforesaid particulars are entered in the Register of
Shareholders.
21.
Where particulars
of a mortgage or charge are registered, such particulars shall only
be cancelled:
(a)
with the consent of
the named mortgagee or chargee or anyone authorised to act on his
behalf; or
(b)
upon evidence
satisfactory to the Directors of the discharge of the liability
secured by the mortgage or charge and the issue of such indemnities
as the Directors shall consider necessary or
desirable.
22.
Whilst particulars
of a mortgage or charge are registered, no transfer of any Share
comprised therein shall be effected without the written consent of
the named mortgagee or chargee or anyone authorised to act on his
behalf.
REDEMPTION
OF SHARES AND TREASURY SHARES
23.
The Company may
purchase, redeem or otherwise acquire and hold its own Shares save
that 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 unless the Company is
permitted by the Act or any other provision in the Memorandum or
Articles to purchase, redeem or otherwise acquire the Shares
without their consent.
24.
The Company may
only offer to acquire Shares if at the relevant time the directors
determine by Resolution of Directors that immediately after the
acquisition the value of the Company’s assets will exceed its
liabilities and the Company will be able to pay its debts as they
fall due.
25.
Sections 60
(Process for acquisition of own shares), 61 (Offer to one or more
shareholders) and 62 (Shares redeemed otherwise than at the option
of company) of the Act shall not apply to the Company.
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26.
Shares that the
company purchases, redeems or otherwise acquires pursuant to this
regulation may be cancelled or held as Treasury Shares except to
the extent that such shares are not in excess of 50% percent of the
issued shares in which case they shall be cancelled but they shall
be available for reissue.
27.
All rights and
obligations attaching a Treasury Share are suspended and shall not
be exercised by the Company while it holds the Share as Treasury
Share.
28.
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.
29.
Where Shares are
held by a another corporative body of which the Company holds
directly or indirectly, shares having more that 50 per cent of the
votes in the election of directors of the other body corporate, all
rights and obligations attaching to the Shares held by the other
body corporate are suspended and shall not be exercised by the
other body corporate.
TRANSFER
OF SHARES
30.
Shares may be
transferred by a written instrument of transfer signed by the
transferor and containing the name and address of the transferee
and, in the case of the transfer of a Share that imposes a
liability to the Company on the transferee, the instrument of
transfer shall also be signed by the transferee.
31.
The Company shall
not be required to treat a transferee of a Share as a Shareholder
until the transferee's name has been entered in the Register of
Shareholders.
32.
Subject to these
Articles, the Company shall, on receipt of a duly executed
instrument of transfer, enter in the Register of Shareholders the
name of the transferee of the Share(s) unless the Directors resolve
to refuse or delay the registration of the transfer for reasons
that shall be specified in the Resolution of
Directors.
33.
The registration of
a transfer of Shares may be suspended and the Register of
Shareholders closed at such times and for such periods as the
Company may from time to time by Resolution of Directors determine,
provided always that such registration shall not be suspended and
the Register of Shareholders shall not be closed for more than 60
days in any period of 12 months.
34.
Where the Directors
are satisfied that an instrument of transfer has been signed but
that the instrument has been lost or destroyed, they may
resolve;
(a)
to accept such
evidence of the transfer of the Shares as they consider
appropriate; and
(b)
that the
transferee’s name should be entered in the Register of
Shareholders, notwithstanding the absence of the instrument of
transfer.
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TRANSMISSION
OF SHARES
35.
The executor or
administrator of a deceased Shareholder, the guardian of an
incompetent Shareholder, the trustee of a bankrupt Shareholder or
liquidator or administrator or receiver of an insolvent Shareholder
shall be the only person recognised by the Company as having any
title to the Shares of that Shareholder but none of them shall be
entitled to exercise any rights as a Shareholder until they have
complied with the procedures set out in the next following two
Regulations.
36.
Any person becoming
entitled by operation of law or otherwise to a Share or Shares in
consequence of the death, incompetence or bankruptcy of any
Shareholder may be registered as a Shareholder upon such evidence
being produced as may reasonably be required by the Directors. An
application by any such person to be registered as a Shareholder
shall be deemed to be a transfer of Shares of the deceased,
incompetent or bankrupt Shareholder and the Directors shall treat
it as such.
37.
Any person who has
become entitled to a Share or Shares in consequence of the death,
incompetence or bankruptcy of any Shareholder may, instead of being
registered himself, request in writing that some person to be named
by him be registered as the transferee of each Share or Shares and
such request shall likewise be treated as if it were a
transfer.
38.
What amounts to
incompetence on the part of a person is a matter to be determined
by the court having regard to all the relevant evidence and the
circumstances of the case.
FORFEITURE
39.
Where Shares are
not fully paid on issue, or are issued for a promissory note or
other written obligation for payment of a debt have been issued
subject to forfeiture, the following provisions shall
apply.
40.
Written notice of a
call specifying a date for payment to be made in respect of a Share
or under the promissory note or other written obligation for
payment of a debt shall be served on a Shareholder who defaults in
making payment in respect of a Share whether pursuant to a
promissory note or other written obligation for payment of a debt
or otherwise.
41.
The written notice
referred to in the immediately preceding Regulation
shall:
(a)
name a further date
not earlier than the expiration of 14 days from the date of service
of the notice on or before which the payment required by the notice
is to be made; and
(b)
contain a statement
that in the event of non-payment at or before the time named in the
notice the Shares, or any of them, in respect of which payment is
not made will be liable to be forfeited.
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42.
Where a written
notice has been issued under these Regulations and the requirements
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.
43.
The Company is
under no obligation to refund any moneys to the Shareholder whose
Shares have been forfeited and cancelled pursuant to these
Regulations. Upon forfeiture and cancellation of the Shares the
Shareholder is discharged from any further obligation to the
Company with respect to the Shares forfeited and
cancelled.
MEETINGS
AND CONSENTS OF SHAREHOLDERS
44.
The Directors of
the Company may convene meetings of the Shareholders of the Company
at such times and in such manner and places within or outside the
British Virgin Islands as the Directors consider necessary or
desirable, however, the failure to satisfy this Regulation does not
invalidate the meeting.
45.
Upon the written
request of Shareholders holding thirty (30) percent or more of the
outstanding Shares entitled to vote in the Company on the matter
for which the meeting is being requested the Directors shall
convene a meeting of Shareholders.
46.
The Directors shall
give not less than seven (7) days notice of meetings of
Shareholders to those persons whose names on the date the notice is
given appear as Shareholders in the Register of Shareholders of the
Company and are to vote at the meeting
47.
The Directors
convening a meeting 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 shareholders that
are entitled to vote at a meeting.
48.
A meeting of
Shareholders held in contravention of the notice requirements set
out above is valid if Shareholders holding not less than a ninety
(90) percent majority of;
(a)
the total number of
Shares entitled to vote on all matters to be considered at the
meeting; or
(b)
the votes of each
class of Shares where Shareholders are entitled to vote thereon as
a class together with not less than an absolute majority of the
remaining votes,
have
waived notice of the meeting and for this purpose presence at the
meeting shall be deemed to constitute waiver.
49.
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.
50.
A Shareholder may
be represented at a meeting of Shareholders by a proxy who may
speak and vote on behalf of the Shareholder.
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51.
The instrument
appointing a proxy shall be produced at the place appointed for the
meeting before the time for holding the meeting at which the person
named in such instrument proposes to vote.
52.
An instrument
appointing a proxy shall be in substantially the following form or
such other form as the chairman of the meeting shall accept as
properly evidencing the wishes of the Shareholder appointing the
proxy.
I/We
________________________________________________ being a
Shareholder of the above Company with _____________ Shares HEREBY
APPOINT ________________________________ of
____________________________________ or failing him
____________________________ of ______________________ to be my/our
proxy to vote for me/us at the meeting of Shareholders to be held
on the ______ day of ______________ and, _______________________ at
any adjournment thereof.
(Any restrictions
on voting to be inserted here)
Signed
this day
of
_________________________________
Shareholder
53.
The following shall
apply in respect of joint ownership of Shares:
(a)
if two or more
persons hold Shares jointly each of them may be present in person
or by proxy at a meeting of 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.
54.
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.
55.
A meeting of
Shareholders is properly constituted, for all purposes, if at the
commencement of the meeting, there are present in person or by
proxy Shareholders entitled to exercise at least fifty (50) percent
of the voting rights of the Shares of each class or series of
Shares thereon and the same proportion of the remaining votes
entitled to vote on resolutions of Shareholders to be considered at
the meeting. If a quorum be present, notwithstanding the fact that
such quorum may be represented by only one person, then such person
may resolve any matter and a certificate signed by such person
accompanied where such person be a proxy by a copy of the proxy
form shall constitute a valid Resolution of
Shareholders.
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56.
If within two hours
from the time appointed for the meeting a quorum is not present,
the meeting, if convened upon the requisition of Shareholders,
shall be dissolved; in any other case it shall stand adjourned to
the next business day at the same time and place or to such other
time and place as the Directors may determine, and if at the
adjourned meeting there are present within one hour from the time
appointed for the meeting in person or by proxy not less than one
third of the votes of the Shares or each class or series of Shares
entitled to vote on the resolution to be considered by the meeting,
those present shall constitute a quorum but otherwise the meeting
shall be dissolved.
57.
At every meeting of
Shareholders, the chairman of the Board of Directors shall preside
as chairman of the meeting. If there is no chairman of the Board of
Directors or if the chairman of the Board of Directors is not
present at the meeting, the Shareholders present shall choose
someone of their number to be the chairman. If the Shareholders are
unable to choose a chairman for any reason, then the person
representing the greatest number of voting Shares present in person
or by prescribed form of proxy at the meeting shall preside as
chairman failing which the oldest individual Shareholder or
representative of a Shareholder present shall take the
chair.
58.
The chairman may,
with the consent of the meeting, adjourn any meeting from time to
time, and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place.
59.
At any meeting of
the Shareholders the chairman shall be responsible for deciding in
such manner as he shall consider appropriate whether any resolution
has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If
the chairman shall have any doubt as to the outcome of any
resolution put to the vote, he shall cause a poll to be taken of
all votes cast upon such resolution, but if the chairman shall fail
to take a poll then any 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 thereupon cause a poll to be taken.
If a poll is taken at any meeting, the result thereof shall be duly
recorded in the minutes of that meeting by the
chairman.
60.
Any person other
than an individual shall be regarded as one Shareholder and subject
to the provisions of the following Article 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 may in good faith seek
legal advice from any qualified person and unless and until a court
of competent jurisdiction shall otherwise rule, the Directors may
rely and act upon such advice without incurring any liability to
any Shareholder.
61.
Any person other
than an individual which is a Shareholder of the Company may by
resolution of its Directors or other governing body authorise such
person as it thinks fit to act as its representative at any meeting
of the Company or of any class of Shareholders of the Company, and
the person so authorised 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 of the
Company.
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62.
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.
63.
Directors of the
Company may attend and speak at any meeting of Shareholders of the
Company and at any separate meeting of the holders of any class or
series of Shares in the Company.
64.
An action that may
be taken by the Shareholders at a meeting may also be taken by a
Resolution of Shareholders consented to in writing or by telex,
telegram, cable, facsimile or other written electronic
communication, without the need for any notice, but if any
Resolution of Shareholders is adopted otherwise than by the
unanimous written consent of all Shareholders, a copy of such
resolution shall forthwith be sent to all Shareholders not
consenting to such resolution. The consent may be in the form of
counterparts in like form each counterpart being signed by one or
more Shareholders.
65.
If the Company
shall have only one Shareholder the provisions herein contained for
meetings of the Shareholders shall not apply and in lieu of minutes
of a meeting shall record in writing and sign a note or memorandum
of all matters requiring a Resolution of Shareholders. Such a note
or memorandum shall constitute sufficient evidence of such
resolution for all purposes.
DIRECTORS
66.
The first directors
of the Company shall be appointed by the first registered agent
within 6 months of the incorporation of the Company and thereafter,
the directors shall be elected by Resolution of Shareholders or by
Resolution of Directors for such terms as the Shareholders or
directors determine
67.
No person shall be
appointed as director of the Company unless he has consent in
writing to act as a director
68.
The minimum number
of directors shall be one and the maximum number shall be
12.
69.
Each Director shall
hold office for the term, if any, fixed by the Resolution of
Shareholders or Directors, as the case may be, appointing him. In
the case of a Director who is an individual the term of office of a
Director shall terminate on the Director's death, resignation or
removal. The bankruptcy of a Director or the appointment of a
liquidator, administrator or receiver of a corporate Director shall
terminate the term of office of such Director.
70.
A Director may be
removed from office,
(a)
with or without
cause, by a Resolution of Shareholder; or
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(b)
with cause, by a
Resolution of Directors passed at a meeting of directors called for
the purpose of removing the director or for the purposes including
the removal of a director.
71.
A Director may
resign his office by giving written notice of his resignation to
the Company and the resignation shall have effect from the date the
notice is received by the Company or from such later date as may be
specified in the notice.
72.
A vacancy in the
Board of Directors may be filled by a Resolution of Shareholders or
by a resolution of a majority of the remaining
Directors
73.
The directors may
at any time appoint any person to be a director either to fill a
vacancy in the Board of Directors or as an addition to the existing
directors. Where the directors appoint a person to fill a vacancy,
the term shall not exceed the term that remained when the person
who has ceased to be a director ceased to hold the
office.
74.
A vacancy in
relation to directors occurs if a director dies or otherwise ceases
to hold office prior to the expiration of his term of
office.
75.
With the prior or
subsequent approval by a resolution of members, 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.
76.
A Director shall
not require a Share qualification, and may be an individual or a
company.
77.
The Company shall
keep a register of Directors containing:
(a)
the names and
addresses of the persons who are Directors of the
Company;
(b)
the date on which
each person whose name is entered in the register was appointed as
a Director of the Company;
(c)
the date on which
each person named as a Director ceased to be a Director of the
Company; and
(d)
such other
information as may be required to be kept by the Act or Regulations
issued in accordance with the Act.
78.
A copy of the
register of Directors shall be kept at the registered office of the
Company.
79.
The Register of
Directors may be kept in any such form as the directors may
approve, but if it is in magnetic, electronic or other data storage
form, the Company must be able to produce legible evidence of its
contents. Until a Resolution of Directors determining otherwise is
passed, the magnetic electronic or other data storage shall be the
original register of director
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POWERS
OF DIRECTORS
80.
The business and
affairs of the Company shall be managed by, or be under the
direction or supervision of, the Directors who may pay all expenses
incurred preliminary to and in connection with the formation and
registration of the Company and may exercise all such powers of the
Company as are not by the Act or by the Memorandum or these
Articles required to be exercised by the Shareholders of the
Company
81.
The Directors may,
by a Resolution of Directors, appoint any person, including a
person who is a Director, to be an officer or agent of the
Company.
82.
Every officer or
agent of the Company has such powers and authority of the
Directors, including the power and authority to affix the Seal, as
are set forth in these Articles or in the Resolution of Directors
appointing the officer or agent, except that no officer or agent
has any power or authority with respect to the matters requiring a
Resolution of Directors under the Act or these
Articles.
83.
Any Director which
is a body corporate may appoint any person its duly authorised
representative for the purpose of representing it at meetings of
the Board of Directors or with respect to unanimous written
consents.
84.
The continuing
Directors may act notwithstanding any vacancy in their body, save
that if their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum for a meeting of
Directors, the continuing Directors or Director may appoint
Directors to fill any vacancy that has arisen or summon a meeting
of Shareholders.
85.
The Directors may
by Resolution of Directors exercise all the powers of the Company
to borrow money and to mortgage or charge its undertakings and
property or any part thereof, to issue debentures, debenture stock
and other securities whenever money is borrowed or as security for
any debt, liability or obligation of the Company or of any third
party.
86.
All cheques,
promissory notes, drafts, bills of exchange and other negotiable
instruments and all receipts for monies 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.
87.
The Directors may
from time to time and at any time by power of attorney appoint any
company, firm or person or body of persons whether appointed
directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purposes and with such powers,
authorities and discretions (not exceeding those vested in or
exercisable by the Directors under these Articles) and for such
period and subject to such conditions as they may think fit and any
such power of attorney may contain such provisions for the
protection and convenience of persons dealing with such attorney or
attorneys as the Directors may think fit and may also authorise any
such attorney or attorneys to delegate all or any powers,
authorities and discretions vested in them.
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88.
For the purposes of
Section 175 of the Act (Disposition of assets), the Directors have
the power to sell, transfer, lease, exchange or otherwise dispose
of the assets of the Company, without restriction and without
complying with the provisions of section 175.
DUTIES
OF DIRECTORS
89.
Subject to this
Regulation, the Directors when exercising their powers or
performing their duties, shall act honestly and in good faith with
a view to the best interests of the Company.
90.
Notwithstanding the
foregoing:
(a)
where the Company
is a wholly owned subsidiary, the Directors may, when exercising
their powers or performing their duties, act in a manner which they
believe to be in the best interest of the Company’s holding
company, even though it may not be in the best interests of the
Company;
(b)
where the Company
is a subsidiary, but not a wholly owned subsidiary, the Directors
may, when exercising their powers or performing their duties, and
with the prior agreement of the shareholders other than the holding
company, act in a manner which they believe to be in the best
interest of the Company’s holding company, even though it may
not be in the best interests of the Company;
(c)
where the
shareholders of the company are carrying out a joint venture, the
Directors may, when exercising their powers or performing their
duties in connection with the carrying out of the joint venture,
act in a manner which they believe to be in the best interest of a
Shareholder or Shareholders, even though it may not be in the best
interests of the Company.
PROCEEDINGS
OF DIRECTORS
91.
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 and for
the avoidance of doubt any one Director may call a meeting of
Directors, however, the failure to satisfy this Regulation does not
invalidate the meeting.
92.
A Director shall be
deemed to be present at a meeting of Directors if he participates
by telephone or other electronic means and all Directors
participating in the meeting are able to hear each
other.
93.
A Director shall be
given not less than 3 days notice of meetings of Directors, but a
meeting of Directors held without 3 days notice having been given
to all Directors shall be valid if all the Directors entitled to
vote at the meeting who do not attend, waive notice of the meeting;
and for this purpose, the presence of a Director at the meeting
shall be deemed to constitute waiver on his part. The inadvertent
failure to give notice of a meeting to a Director, or the fact that
a Director has not received the notice, does not invalidate the
meeting.
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94.
A Director may by a
written instrument appoint an alternate who need not be a Director
and an alternate is entitled to attend meetings in the absence of
the Director who appointed him and to vote or consent in the place
of the Director.
95.
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 two Directors in which case the quorum shall
be two.
96.
If the Company
shall have only one Director the provisions herein contained for
meetings of the Directors shall not apply but such sole Director
shall have full power to represent and act for the Company in all
matters as are not by the Act or the Memorandum or these Articles
required to be exercised by the Shareholders of the Company and in
lieu of minutes of a meeting shall record in writing and sign a
note or memorandum of all matters requiring a Resolution of
Directors. Such a note or memorandum shall constitute sufficient
evidence of such resolution for all purposes.
97.
At every meeting of
the Directors the chairman of the Board of Directors shall preside
as chairman of the meeting. If there is no chairman of the Board of
Directors or if the chairman of the Board of Directors is not
present at the meeting the vice chairman of the Board of Directors
shall preside. If there is no vice chairman of the Board of
Directors of if the vice chairman of the Board of Directors is not
present at the meeting the Directors present shall choose someone
of their number to be chairman of the meeting.
98.
An action that may
be taken by the Directors or a committee of Directors at a meeting
may also be taken by a Resolution of Directors or a committee of
Directors consented to in writing or by telex, telegram, cable,
facsimile or other written electronic communication by all
Directors or all members of the committee, as the case may be,
without the need for any notice. The consent may be in the form of
counterparts, each counterpart being signed by one or more
Directors. 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.
99.
The Directors shall
cause the following corporate records to be kept:
(a)
minutes of all
meetings of Directors, Shareholders, committees of Directors,
committees of officers and committees of Shareholders;
and
(b)
copies of all
resolutions consented to by Directors, Shareholders, committees of
Directors, committees of officers and committees of
Shareholders.
100.
The books, records
and minutes shall be kept at the place that the Directors by
Resolution of Directors determine.
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COMMITEES
101.
The Directors may,
by a 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.
102.
Each committee of
Directors has such powers, and authorities of the Directors,
including the power and authority to affix the Seal, as are set
forth in the Resolution of Directors establishing the committee,
except that no committee has any power or authority;
(a)
to amend the
Memorandum or these Articles;
(b)
to designate
committees of Directors;
(c)
to delegate powers
to a committee of Directors;
(d)
to appoint
Directors;
(e)
to appoint
agents;
(f)
to approve a plan
of merger, consolidation or arrangement; or
(g)
to make a
declaration of solvency or approve a liquidation plan.
103.
The meetings and
proceedings of each committee of Directors consisting of 2 or more
Directors shall be governed mutatis mutandis by the provisions of
these Articles regulating the proceedings of Directors so far as
the same are not superseded by any provisions in the resolution
establishing the committee.
OFFICERS
104.
The Company may by
Resolution of Directors appoint officers of the Company at such
times as shall be considered necessary or expedient. Such officers
may consist of a chairman of the Board of Directors, a vice
chairman of the Board of Directors, President and one or more Vice
Presidents, Secretaries and Treasurers and such other officers as
may from time to time be deemed desirable. Any number of offices
may be held by the same person.
105.
The officers shall
perform such duties as shall be prescribed at the time of their
appointment subject to any modification in such duties as may be
prescribed thereafter by Resolution of Directors or Resolution of
Shareholders, but in the absence of any specific allocation of
duties it shall be the responsibility of the chairman of the Board
of Directors to preside at meetings of Directors and Shareholders,
the vice chairman to act in the absence of the chairman, the
President to manage the day to day affairs of the Company, the Vice
Presidents to act in order of seniority in the absence of the
President but otherwise to perform such duties as may be delegated
to them by the President, the Secretaries to maintain the 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,
and the Treasurer to be responsible for the financial affairs of
the Company.
20
106.
The emoluments of
all officers shall be fixed by Resolution of
Directors.
107.
The officers of the
Company shall hold office until their successors are duly elected
and qualified, but any officer elected or appointed by the
Directors may be removed at any time, with or without cause, by
Resolution of Directors. Any vacancy occurring in any office of the
Company may be filled by Resolution of Directors.
CONFLICT
OF INTERESTS
108.
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 in the
Company.
109.
For the purposes of
Section 108 a disclosure to all other directors to the effect that
a director is a member, director 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 or disclosure,
be entered into with that entity or individual, is a sufficient
disclosure of interest in relation to that
transaction.
110.
Notwithstanding the
previous Regulation, a transaction entered into by the Company is
not voidable by the Company if;
(a)
the material facts
of the interest of the Director in the transaction are known by the
Shareholders entitled to vote at a meeting of Shareholders and the
transaction is approved or ratified by a Resolution of
Shareholders; or
(b)
the Company
received fair value for the transaction, and such determination of
fair value is made on the basis of the information known to the
Company and the interested Director at the time that the
transaction was entered into.
111.
A Director of a
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 the matter relating to the transaction arises
and be included among the Directors present at the meeting for the
purpose 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 the 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
benefits.
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REGISTER
OF CHARGES
112.
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)
date of creation of
the charge;
(b)
a short description
of the liability secured by the charge;
(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, if any, 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.
INDEMNIFICATION
113.
Subject to the
limitations hereinafter provided the Company may indemnify against
all expenses, including legal fees, and against all judgements,
fines and amounts paid in settlement and reasonably incurred in
connection with legal, administrative or investigative proceedings
any person who:
(a)
is or was a party
or is threatened to be made a party to any threatened, pending or
completed proceedings, whether civil, criminal, administrative or
investigative, by reason of the fact that the person is or was a
Director, an officer, agent or a liquidator of the Company;
or
(b)
is or was, at the
request of the Company, serving as a Director, officer, agent or
liquidator of, or in any other capacity is or was acting for,
another company or a partnership, joint venture, trust or other
enterprise.
114.
The indemnity in
Section 113 only applies if such person acted honestly and in good
faith with a view to the best interests of the Company and, in the
case of criminal proceedings, the Person had no reasonable cause to
believe that his conduct was unlawful.
115.
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 such person had no reasonable cause to believe that his
conduct was unlawful, is in the absence of fraud, sufficient for
the purposes of these Articles, unless a question of law is
involved.
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116.
The termination of
any proceedings by any judgement, order, settlement, conviction or
the entering of a nolle prosequi does not, by itself, create a
presumption that the Indemnifiable Person did not act honestly and
in good faith and with a view to the best interests of the Company
or that such person had reasonable cause to believe that his
conduct was unlawful.
117.
The Company may
purchase and maintain insurance in relation to any person who is or
was a director, officer or liquidator of the Company, or who at
request of the Company is or was serving as a director, officer or
liquidator of, or in any other capacity is or was acting for,
another company or a partnership, joint venture, trust or other
enterprise, 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.
SEAL
118.
The Directors shall
provide for the safe custody of the Seal and for an imprint thereof
to be kept at the Registered Office. The Seal when affixed to any
written instrument shall be witnessed by a Director or any other
person so authorised from time to time by Resolution of Directors.
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 signed as
hereinbefore described.
DISTRIBUTIONS
119.
The Company may,
from time to time, by a Resolution of Directors authorise a
Distribution by the Company at a time, and of an amount, and to any
Shareholders it thinks fit if they are satisfied, on reasonable
grounds, that immediately after the Distribution
(a)
the value of the
Company’s assets will exceed its liabilities;
and
(b)
the Company will be
able to pay its debts as they fall due.
120.
Distributions may
be paid in money, shares or other property.
121.
Notice of any
Distribution that may have been authorised shall be given to each
Shareholder in the manner hereinafter mentioned and all
Distributions unclaimed for 3 years after having been declared may
be forfeited by Resolution of Directors for the benefit of the
Company.
122.
No Distribution
shall bear interest as against the Company and no Distribution
shall be authorised or made on Treasury Shares.
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ACCOUNTS
123.
The Company shall
keep such accounts and records that are sufficient to show and
explain the Company’s transactions; and will at any time,
enable the financial position of the Company to be determined with
reasonable accuracy.
124.
The Company may by
Resolution of Shareholders call for the directors to prepare
periodically and make available a profit and lost account and
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
assets and liabilities of the Company as at the end of a fiscal
year.
125.
The Company may by
Resolution of Shareholders call for the accounts to be examined by
auditors in which event the following provisions shall apply to the
appointment and activities of the auditors.
125.
The first auditors
shall be appointed by Resolution of Directors; subsequent auditors
shall be appointed by a Resolution of Shareholders.
127.
The auditors may be
Shareholders of the Company but no Director or other officer shall
be eligible to be an auditor of the Company during his continuance
in office.
128.
The remuneration of
the auditors of the Company:
(a)
in the case of
auditors appointed by the Directors, may be fixed by Resolution of
Directors;
(b)
subject to the
foregoing, shall be fixed by Resolution of Shareholders or in such
manner as the Company may by Resolution of Shareholders
determine.
129.
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 report whether or not:
(a)
in their opinion
the profit and loss account and balance sheet give a true and fair
view respectively of the profit and loss for the period covered by
the accounts, and of the state of affairs of the Company at the end
of that period;
(b)
all the information
and explanations required by the auditors have been
obtained.
130.
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 served on the Shareholders.
131.
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.
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132.
The auditors of the
Company shall be entitled to receive notice of, and to attend any
meetings of Shareholders of the Company at which the Company's
profit and loss account and balance sheet are to be
presented.
NOTICES
133.
Any notice,
information or written statement to be given by the Company to
Shareholders may be served in any way by which it can reasonably be
expected to reach each Shareholder or by mail addressed to each
Shareholder at the address shown in the Register of
Shareholders.
134.
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.
135.
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 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.
VOLUNTARY
WINDING UP AND DISSOLUTION
136.
The Company may by
a Resolution of Shareholders or by a Resolution of Directors
appoint a voluntary liquidator.
CONTINUATION
137.
The Company may by
Resolution of Shareholders or by 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.
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We,
ICAZA, GONZALEZ-RUIZ & ALEMAN
(BVI) TRUST LIMITED of Vanterpool Plaza, 2nd Floor, Wickhams Cay
I, Road Town, Tortola, British Virgin Islands for the purpose of
incorporating a BVI Business Company under the laws of the British
Virgin Islands hereby sign these Articles of Association this
13th day
of July, 2012.
Incorporator
_______________________________
Gian
Carlo Pedreschi T.
Authorised
Signatory
Icaza, Gonzalez-Ruiz & Aleman (BVI) Trust Limited
26