Incorporated the 12th day of August, 1987
As amended January 17,1997 As
amended November 20,1998 As amended
December 22,1998
As amended June 26,2003 Amended under the BVI Business Companies Act this 5th day of December 2007
McNamara Corporate Services Limited
Registered Agents
2nd Floor
116 Main Street
P.O. Box 3342
Road Town, Tortola
British Virgin Islands
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE B.V.I. BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION
OF
NAM TAI ELECTRONICS, INC.
1.
The name of the Company is Nam Tai Electronics, Inc. The Company was first
incorporated as a company under the IBC Act (291) on the 12th day of August
1987
and immediately prior to re-registration under the BVI Business Companies Act, it
was governed by the IBC Act.
2.
At the time of filing the notice of election to disapply part IV of schedule 2 of the
BVI Business Companies Act, the Registered Office of the Company was situated
at 2nd Floor 116 Main Street, Road Town Tortola, British Virgin Islands or at
such
other place within the British Virgin Islands as the Directors may from time to time
determine.
3.
At the time of filing the notice of election to disapply part IV of schedule 2 of the
BVI Business Companies Act, the Registered Agent of the Company in the British
Virgin Islands was McNamara Corporate Services Limited, whose address is 2nd
Floor, 116 Main Street P.O. Box 3342, Road Town, Tortola, British Virgin Islands.
4.
The object or purpose for which the Company is established is to engage in any act
or activity that is not prohibited under any law for the time being
in force in the
British Virgin Islands.
5.
Without prejudice to the generality of clause 4. hereof and subject thereto, the
Company has power to do any and all acts to carry on any business or businesses
whatsoever and to engage in any activities which may conveniently be carried on
with or be conducive to the attainment of the Company’s objects or purposes,
including the power to enter into any contract or undertaking whether directly or
indirectly for the benefit or profit of the Company and to settle the Company’s
assets or property or any part thereof in trust or transfer the same to any other
Company whether for the protection of its assets or not, and with respect to the
transfer, the Directors may provide that the Company, its creditors, its members or
any person having a direct or indirect interest in the Company or any of them may
be the beneficiaries, creditors, members, certificate holders, partners or holders of
any other similar interest.
The par value of shares in the Company shall be in the currency of the United States
dollar.
8.
The total number of shares of capital stock of all classes that the Company
(hereinafter called “Capital Stock”) shall have the authority to issue is Two
Hundred Million (200,000,000) registered shares of common stock of the par value
of US$0.01 per share (hereinafter called “Common Stock”).
9.
The Company is not authorised to issue bearer shares, convert registered shares to
bearer shares or exchange registered shares for bearer shares.
10.
At every meeting of the members, every holder of Common Stock shall be entitled
to one (1) vote, in person or by proxy, on all matters, including the election of
directors, for each share of Common Stock standing in his, her or its name on the
Register of Members. Directors elected by the holders of Common Stock may be
removed, with or without cause, only by a vote of the holders of a majority of the shares of Common Stock then outstanding. If, during the interval between annual
meetings of members for the election of directors, the number of directors who
have been elected by the holders of Common Stock shall, by reason of resignation,
death or removal, be reduced, the vacancy or vacancies in the directors elected by
the holders of Common Stock shall be filled by a majority vote of the remaining
directors then in office, even if less than a quorum. Any director elected to fill any
such vacancy by the remaining directors then in office may be removed from office
by vote of the holders of a majority of the shares of Common Stock then
outstanding.
11.
Every reference in this Memorandum of Association or in the Articles of Association
of the Company to a majority or other proportion of shares of stock
shall refer to such
majority or other proportion of the votes of such shares of Common Stock.
12.
The directors may at any time and from time to time issue shares of authorized and
unissued Common Stock upon such terms and for such lawful consideration as they
may determine, and any shares issued for which the consideration so fixed has been
paid or delivered shall be fully paid stock and the holder of such shares shall not be
liable for any further call or assessment or any other payment thereon, provided that
the actual value of such consideration is not less than the par value of the shares so
issued.
13.
No member of the corporation shall be entitled as of right to subscribe for, purchase,
or take any part of any new or additional issue of Capital Stock of any class.
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14.
This Memorandum of Association and the Articles of Association of the Company may be
amended by a resolution of members or a resolution of directors, provided, however, that
that no amendment may be made by resolution of directors:
to authorize the Company to issue, or authorize the issuance of, bearer
shares of Capital Stock.
We,
McNamara Corporate Services Limited of 2nd floor, 116 Main Street, Road Town
Tortola, British Virgin Islands for the purpose of disapplying part IV of schedule 2 of BVI
Business Companies Act, hereby signed as Registered Agent of the Company this 5th day
of December 2007.
The following Regulations constitute the Regulations of the Company.
In these Articles words and expressions defined in the British Virgin
Islands Business Companies Act, 2004 (the “Act”), shall have the same
meanings as used the Act, and, unless otherwise required by the
context, the singular shall include the plural
and vice-versa, the masculine shall include the feminine and neuter
and references to persons shall include corporations and all legal
entities capable of having a legal existence.
SHARES
2.
Subject to the provisions of these Articles the unissued shares of the
Company (whether forming part of the original or any increase in the
number of shares of authorized Capital Stock) shall be at the disposal
of the Directors who may offer, allot, grant options over or otherwise
dispose of them to such persons at such times and for such
consideration and upon such terms and conditions as the directors may
determine.
3.
No shares shall be issued except as fully paid up.
4.
The name and address for every person being the holder of registered
shares, their class or series and the date when they became or ceased
to become a member shall be entered as a in the register of members.
5.
(a)
The Company’s registered shares may be certificated or
uncertificated and shall be entered in the register of members of the
Company and registered as they are issued. Every person whose name is
entered as a member in the register of members being the holder of
registered-shares, shall, without payment, be entitled upon written
request to a certificate or certificates specifying the share or
shares held and the par value thereof, provided that in respect of a
registered share, or shares, held jointly by several persons the
Company shall not be bound to issue more than one certificate, and
delivery
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of a certificate for a share to one of several joint holders shall be
sufficient
delivery to all.
(b)
Certificates representing registered shares shall be in such
form as the directors shall prescribe. Each certificate shall state
the name of the Company and of the shareholder, and the number and
class (and the designation of the series, if any) of the shares
represented. The certificate shall be signed either manually or by
facsimile, by a director or officer of the Company and shall be sealed
with the seal of the Company or a facsimile thereof and the validity
of such certificate is not affected by the fact that the person who
signed a share certificate no longer holds office.
(c)
Within a reasonable time after the issuance or transfer of
uncertificated shares, the Company shall send or cause its transfer
agent to send to the owner thereof indicated in the register of
members a written notice that shall set forth the name of the Company,
that the Company is organized or incorporated under the laws of the
British Virgin Islands, the name of the shareholder, the number and
class (and the designation of the series, if any) of the shares
represented, and any restrictions on the transfer or registration of
such shares of stock imposed by the Company’s memorandum of
association, these articles of association, any agreement
among shareholders, any agreement between shareholders and the
Company or by applicable British Virgin Islands law.
6.
If a certificate is worn out or last it may be renewed on production
of the worn out certificate, or on satisfactory proof of its loss
together with such indemnity as the directors may reasonably require.
Any member receiving a share certificate or uncertificated registered
shares shall indemnify and hold the Company and its officers harmless
from any loss or liability which it or they may incur by reason of
wrongful or fraudulent use or representation made by any person by
virtue of the possession such certificate.
CAPITAL
STOCK AND VARIATION OF RIGHTS
7.
Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares, any share in the
Company may be issued with such preferred, deferred or other special
rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise as the directors may from time to time
determine.
8.
Subject to the provisions of the Act, any shares may be purchased,
redeemed or acquired by the Company on such terms and in such manner
as the directors may determine.
(a)
For the purposes of Regulation 8.1 of these Articles the
following defined terms have the meanings indicated;
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“Beneficial owner,”“beneficial ownership” or “beneficially owned,” in the context of a Person
whose shares may be redeemed shall be ascertained in accordance with Rule 13d-3 of Regulation
13D promulgated by the U.S. Securities and Exchange Commission pursuant to the U.S. Securities
Exchange Act of 1934, as amended, or any successor to that Rule.
“Date Fixed for Redemption” shall have the meaning specified in Regulation 8(b) of these
Regulations.
“Fair Market Value” of the shares to be redeemed means the product of the number of shares redeemed
multiplied by the Redemption Price.
“Judgment” means a judgment (i) for a liquidated amount in a civil matter; (ii) that is final and
conclusive and has not been stayed or satisfied in full; (iii) that is not directly or indirectly
for the payment of taxes, penalties, fines or charges of a like nature; (iv) that is not obtained
by actual or constructive fraud or duress; (v) in which the rendering court has taken jurisdiction
on grounds that are recognized by the common law rules of the British
Virgin Islands; (vi) in
which proceedings it was obtained were not contrary to natural justice or the public policy of the
British Virgin Islands; (vii) in which the Person against whom the judgment is given is subject to
the jurisdiction of the court rendering the judgment; and (viii) is not on a claim for
contribution in respect of damages awarded by a judgment which does not satisfy the foregoing.
“Judgment Amount” means the sum of (i) the liquidated amount of the Judgment, (ii) interest
thereon at the legal rate of the jurisdiction in which it was entered from the date of such entry
through the Date Fixed for Redemption, and (iii) reasonable expenses of the Company (including its
reasonable attorney fees, court costs, administration and overhead costs, and any other related
expenses) of enforcing the Judgment and/or redeeming its shares to satisfy the same, less the sum
of any amounts thereto fore paid on, or credited against, the Judgment.
“Notice” shall have the meaning specified in
Regulation 8(b) of these Regulations.
“Person” means any natural person, corporation, company incorporated under the International
Business Companies Act of the British Virgin Islands, limited liability company, general
partnership, limited partnership, proprietorship, other business organization, trust, union,
association or other “person” defined in the International Business Companies Act of the British
Virgin Islands.
“Redemption Price” means (i) if the class of shares to be redeemed is traded in the
over-the-counter market in the U.S. and not on any national
securities exchange in the U.S. (including The Nasdaq Stock Market, which began
4
operations as a national securities exchange in the U.S. on August 1, 2006), the average of the
per share closing bid prices of the shares on the 20 consecutive trading days immediately
preceding the Date Fixed for Redemption, as reported by The OTC Bulletin Board (OTCBB) or the
Pink Sheets LLC if the shares are not quoted on the OTCBB (or an equivalent generally accepted
reporting service if quotations are not reported on The Pink Sheets LLC), or (ii) if the class
of shares to be redeemed is traded on a national securities exchange in the U.S. (including The
Nasdaq Stock Market), the average for the 20 consecutive trading days immediately preceding the
Date Fixed for Redemption of the daily per share closing prices of the shares in on the
principal stock exchange in the U.S. (including The Nasdaq Stock Market) on which they are
listed. For purposes of clause (i) above, if trading in the shares is not reported on the
OTCBB, the bid price referred to in said clause shall be the lowest, bid price as reported in
the Pink Sheets LLC or, if not reported thereon, an equivalent generally accepted reporting
service and, if such shares are not so reported shall be the price of a share determined by the
directors in good faith. The closing price referred to in clause (ii) above shall be the last
reported sale price or, in the case no such reported sale takes place on such day, the last
reported sale price previously reported on the national securities exchange in the U.S.
(including The Nasdaq Stock Market) on which the class of shares is then listed.
“U.S.” shall mean the United States of America.
(b)
Without limiting the generality of Regulation 8 of these Articles, in the furtherance
thereof and in addition to any other rights or remedies available to the Company at law or in
equity, the Company may at any time and from time to time redeem, at the Redemption Price per
share, all or any of its outstanding shares beneficially owned by any Person, or registered
in the name of any Person whose name is entered as a member in the share register, against
whom the Company has a Judgment. At least 30 calendar days before the date fixed for
redemption as determined by resolution of the directors (the “Date Fixed for Redemption”), a
written redemption notice (the “Notice”) shall be sent to each beneficial owner and
registered holder (if different, from the beneficial owner) whose shares are to be redeemed
by first-class mail, postage prepaid, at the address of the beneficial owner and registered
holder (if different, from the beneficial owner) as shown on the records of the Company,
stating: (i) the class(es) of shares and the number of shares in each such class to be
redeemed from the beneficial owner, (ii) the Date Fixed for
Redemption, (iii) information on
the method to be used to determine Redemption Price in accordance with Regulation 8(a) of
these Articles, (iv) the Judgment Amount and (v) the address of the place where the
certificates for the shares to be redeemed shall be surrendered for redemption. On or before
the Date Fixed for Redemption, each beneficial owner and registered holder (if different,
from the beneficial owner) of the shares to be redeemed shall surrender the certificates
representing these shares to the Company at the place so designated therefor in the Notice
5
unless the Judgment Amount has theretofore been satisfied in full.
On the Date Fixed for Redemption the Company shall pay the
Redemption Price for the shares redeemed by offsetting the Fair
Market Value of the shares redeemed against the Judgment Amount. If
the Fair Market Value of the shares redeemed exceeds the Judgment
Amount, then new certificates representing the number of shares
determined by dividing such excess by the Redemption Price (and
rounding the quotient down to the nearest whole share) shall be
issued to the Person whose shares were redeemed. In lieu any
fractional shares otherwise issuable, the Company shall pay an
amount equal to the Redemption Price multiplied by the fraction. If
the Fair Market Value of the shares redeemed is insufficient to
fully satisfy the Judgment Amount, the Company shall retain the
right to pursue all of its rights and remedies otherwise available
to satisfy the deficiency. If the Notice is given in the manner
provided in this Regulation, whether or not the certificates
covering these shares are surrendered, all rights with respect to
the redeemed shares shall terminate except for the right of the
Person whose shares are so redeemed to receive credit by offset
against the Judgment Amount as herein provided. Unless the
certificates covering these shares are received by the company at
the place so designated the Judgment Amount will not be deemed to
have been satisfied in full.
9.
If at any time the Capital Stock is divided into different classes
or series of shares, the rights attached to any class or series
(unless otherwise provided by the terms of issue of the shares of
that class or series) 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 any other class or series
of shares which may be affected by such variation.
10.
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.
11.
No notice of a trust, whether expressed, implied or constructive,
shall be entered on the-register of members.
TRANSFER
OF SHARES
12.
Registered shares in the Company may be transferred by a written
instrument of transfer signed by the transferor and containing the
name and address of the transferee, but in the absence of such
written instrument of transfer the directors may accept such
evidence of a transfer of shares as they consider appropriate.
Without prejudice to the foregoing, the directors may appoint a
transfer agent and one or more co-transfer agents and registrar and
one or more co-registrars and may make or authorize such agent to
make all such additional rules and regulations
6
deemed expedient concerning the issue, transfer and registration of the
shares of the Company.
13.
(a)
Subject to any limitations in the Memorandum, upon
surrender to the Company or the transfer agent of the Company of a
certificate for registered shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be
the duty of the Company to issue a new certificate or evidence of the
issuance of uncertificated shares to the shareholder entitled thereto,
cancel the old certificate and record the transaction upon the Company’s
register of members. Upon the surrender of any certificate for transfer,
such certificate shall at once be conspicuously marked on its face
“Cancelled” and recorded in the register of members of the
Company.
(b)
Upon the receipt of proper transfer
instructions from the registered owner of uncertificated registered
shares, such uncertificated shares shall be cancelled, issuance of
new equivalent uncertificated shares or certificated shares shall be
made to the shareholder entitled thereto and the transaction shall be
recorded upon the register of members of the Company. If the Company
has a transfer agent or registrar acting on its behalf, the signature
of any officer or representative thereof may be in facsimile.
14.
The directors shall have power to close the register
of members for such period as they shall think fit, but not exceeding 90 days
in any one year.
TRANSMISSION
OF SHARES
15.
(a)
The personal representatives, guardian or trustee as
the case may be of any deceased, incompetent or bankrupt sole holder of a
registered share shall be the only persons recognised by the Company as
having any title to the share. In the case of a share registered in the
names of two or more holders, the survivor or survivors, and the personal
representative, guardian or trustee as the case may be of the deceased,
incompetent or bankrupt holder or holders shall be the only persons
recognised by the company as having any title to the share but they shall
not be entitled to exercise any rights as a member of the Company until they
have proceeded as set forth in the following Regulations.
(b)
Any person becoming entitled by operation of
law or otherwise to a share or shares in consequence of the death,
incompetence or bankruptcy of any member may be registered as a
member upon such evidence being produced as may reasonably be
required by the directors. An application by any such person to be
registered as a member for all purposes shall be deemed to be a
transfer of shares of the deceased, incompetent or bankrupt member
and the directors shall treat it as such.
7
16.
Any person who has become entitled to a share or shares in consequence
of the death, incompetence or bankruptcy of any member may, instead of being
registered
himself, request in writing that some person to be named by him be
registered as a
transferee of such share or shares and such request shall likewise be
treated as it
were a transfer.
ACQUISITION OF OWN SHARES
17.
Subject to the provisions of the Act, the Company may
purchase, redeem or
otherwise acquire any of its own shares for such consideration as the
Company by
resolution of directors considers fit, and either cancel or hold such shares
as treasury
shares. The Company may dispose of any shares held as treasury shares on
such
terms and conditions as the Company by a resolution of directors may from
time to
time determine. Shares may be purchased or otherwise acquired by the Company
in
exchange for newly issued shares in the Company.
18.
Subject to the provisions of the Act as to reduction of
Capital Stock the Company may by resolution of directors amend its
Memorandum of Association to increase or reduce its Capital Stock.
19.
Any increase in the Capital Stock created by the issuance
of new shares shall be
considered as part of the original Capital Stock, and shall be subject to
the same
provisions as if it had been part of the original Capital Stock.
20.
The Company may amend its Memorandum of Association to
(a)
consolidate all or any of its Capital Stock
into shares of larger amount than
its existing shares;
(b)
cancel any shares which, at the date of the
passing of the resolution, have
not been taken or agreed to be taken by any person and diminish the
amount
of its Capital Stock by the amount of the shares so cancelled;
(c)
sub-divide its shares or any of them into
shares of smaller amount than is
fixed by the Memorandum of Association and so that subject to the
provisions of Regulation 9 the resolution whereby any share is
sub-divided
may determine that as between the holders of the shares resulting
from such
sub-division one or more of the shares may have such preferred or
other
special rights over or may have such qualified or deferred rights or
be
subject to any such restrictions as compared with the other or others
as the
Company has power to attach to unissued or new shares;
(d)
subject to the provisions of the Act, reduce
its issued Capital Stock or any
Capital Stock represented by the capital redemption reserve fund or
by the
share premium account in any manner.
8
21.
Where any difficulty arises in regard to any consolidation and division
under Regulation 20, the Company by a resolution of directors may settle the
same as it thinks expedient.
MEETINGS OF MEMBERS
22.
The directors may convene meetings of the members of the
Company at such times and in such manner and places as the directors consider necessary or
desirable, and
they shall convene such a meeting upon the written request of members
holding
more than 30 percent of the votes of the outstanding voting shares in the
Company.
23.
At least seven days notice specifying the place, the day
and the hour of the meeting
and the general nature of the business to be conducted shall be given to
such
persons whose names on the date the notice is given appear as members in the
register of members of the Company.
24.
A meeting of the members shall be deemed to have been
validly called,
notwithstanding that is called in contravention of the requirement to give
notice in
Regulation 23 if shorter notice of the meeting is agreed by members holding
not
less than 90 percent of the total number of shares having a right to attend
and vote at
the meeting, or if all such members have waived notice of the meeting.
Presence at
the meeting shall be deemed to constitute waiver.
25.
The inadvertent failure of the directors to give notice of
a meeting to a member or to
the agent or attorney as the case may be, or the fact that a
member or such agent or
attorney has not received the notice, does not invalidate the meeting.
26.
A member may be represented at a meeting of members by
proxy. The instrument
appointing a proxy shall be in such form as the Chairman of the meeting
shall
accept and 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.
PROCEEDINGS AT MEETINGS OF MEMBERS
27.
No business shall be transacted at any meeting of members
unless a quorum of
members is present at the time when the meeting proceeds to business. A
quorum
shall consist of one or more members present in person or by proxy
representing at
least one half of the votes of the shares of each class or series of shares
entitled to
vote as a class or series and the same proportion of the votes of the
remaining shares
entitled to vote.
28.
If within one hour from the time appointed for the meeting a
quorum is not present,
the meeting, if convened upon the requisition of members, shall be
dissolved; in
any other case it shall stand adjourned to the 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
9
adjourned meeting there are present within one hour from the time
appointed for the meeting in person or by proxy not less than one third
of the votes of the shares or each class or series of shares entitled to
vote on the resolutions to be considered by the meeting, those present
shall constitute a quorum but otherwise the meeting shall be dissolved.
29.
At each meeting of the members, the Chairman of the board
of directors or if there
is no Chairman of the board of directors, or in his or her absence, the
Chief
Executive Officer or the Chief Financial Officer of the Company, or in the
absence
of both the Chairman of the board of directors and the Chief Executive
Officer or
Chief Financial Officer, an officer of the Company selected by the
Chairman of the
board of directors, or if there is no Chairman of the board of directors
or if the
Chairman of the board of directors has made no selection, an officer of
the
Company selected by the board of directors, shall act as Chairman of the
meeting.
30.
In case at any meeting of members where the chairman of
the meeting as
determined in accordance with regulation 29 is not present within fifteen
minutes
after the time appointed for holding the meeting, the members present
shall choose
someone of their number to be chairman.
31.
The chairman at any meeting, of members may 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.
32.
All shares vote as one class and each whole share has
one vote. If two or more
persons are jointly entitled to a registered nominative share and if more
than one of
such persons is desirous of voting at the meetings whether in person or by
proxy,
the vote of that person whose name appears first among such voting joint
holders in
the register of members alone shall be counted.
33.
A member may be present at a meeting if he participates
by telephone or other
electronic means and all members participating at the meeting are able to
hear each
other.
34.
At any meeting of the members the Chairman shall be
responsible for deciding in
such manner as he shall consider appropriate whether a resolution has been
carried
or not and the result of his decision shall be announced to the meeting
and recorded
in the minutes thereof. If the Chairman shall have any doubt as to the
outcome of
any resolution put to the vote, he shall cause a poll to be taken of all
votes cast upon
such resolution, but if the Chairman shall fail to take a poll then any
member
present in person or by proxy who disputes the announcement by the
Chairman of
the result of any vote may immediately following such announcement demand
that
a poll be taken and the Chairman shall thereupon cause a poll to be taken.
If a poll
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is taken at any meeting, the result thereof shall be duly recorded
in the minutes of that meeting by the Chairman.
35.
Unless a poll be so demanded, a declaration by the Chairman
that a resolution has,
on a show of hands, been carried, and an entry to that effect in the book
containing
the minutes of the proceedings of the Company, shall be sufficient evidence
of the
fact, without proof of the number or proportion of the votes recorded in
favour of or
against such resolution.
36.
If a poll is demanded it shall be taken in such manner as
the Chairman directs, and
the result of the poll shall be deemed to be the resolution of the meeting
at which
the poll was demanded. The demand for a poll may be withdrawn.
37.
A resolution which has been notified to all members for the
time being entitled to
vote and which has been approved by a majority of the votes of those members
in
the form of one or more documents in writing by telex, telegram, cable or
other
written electronic communication shall without the need for any notice,
become
effectual as at the dates thereof as a resolution of the members.
38.
Any person other than an individual shall be regarded as
one member and subject to
Regulation40 the right of any individual to speak for or represent such
member
shall be determined by the law of the jurisdiction where, and by the
documents by
which, the person is constituted or derives its existence. In case of
doubt, the
directors may in good faith seek legal advice from any qualified person and
unless
and until a court of competent jurisdiction shall otherwise rule, the
directors may
rely and act upon such advice without incurring any liability to any member.
39.
Any person other than an individual who is a member 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
members 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 member of the Company.
DIRECTORS
40.
The first director or directors shall be elected by the
subscriber to the Memorandum
of Association. Thereafter, the directors, other than in the case of a
vacancy, shall
be elected by the members for such term as the members may determine and may
be removed by them.
41.
The number of the directors shall be not less than one nor more than
eight.
42.
Each director holds office according to the terms of
his appointment until his successor takes office or until his earlier death,
resignation or removal.
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43.
A vacancy in the board of directors may be filled by the appointment of
a new director pursuant to a resolution of members or of a majority of the remaining
directors.
44.
A director shall not require a share qualification, but nevertheless shall be entitled
to attend and speak at any meeting of the members and at any separate meeting of
the holders of any class of shares in the Company.
45.
A director by writing under his and deposited at the Registered Office of the
Company may from time to time appoint another director or any other person to be
his alternate. Every such alternate shall be entitled to be given notice of meetings
of the directors and to attend and vote as a director at any such meeting at which the
director appointing him is not personally present and generally at such meeting to
have and exercise all the powers, rights, duties and authorities of the director
appointing him. Every such alternate shall be deemed to be an officer of the
Company and shall not be deemed to be an agent of the director appointing him. If
undue delay or difficulty would be occasioned by giving notice to a director of a
resolution of which his approval is sought in accordance with Regulation 8074 his
alternate (if any) shall be entitled to signify approval of the same on behalf of that
director. A director by writing under his hand deposited at the Registered Office of
the company may at any time revoke the appointment of an alternate appointed by
him. If a director shall die or cease to hold the office of director, the appointment of
his alternate shall thereupon cease and terminate.
46.
The directors may, by resolution of directors, fix the emoluments of directors in
respect of services rendered or to be rendered in any capacity to the company. The
directors may also be paid such traveling, hotel and other expenses properly
incurred by them in attending and returning from meetings of the directors, or any
committee of the directors or meetings of the members, or in connection with the
business of the Company as shall be approved by resolution of directors.
47.
Any director who, by request, goes or resides abroad for any purpose of the
Company or who performs services which in the opinion of the Board goes
beyond
the ordinary duties of a director, may be paid such extra remuneration
(whether by
way of salary, commission, participation in profits or otherwise) as shall
be
approved by resolution of directors.
48.
The Company may pay to a director who at the request of the
Company holds any
office (including a directorship) in, or renders services to any company in
which the
Company may be interested, such remuneration (whether by way of salary,
commission, participation in profits or otherwise) in respect of such office
or
services as shall be approved by resolution of directors.
49.
The office of director shall be vacated if the director:-
(a)
is removed from office by resolution of members or
12
(b)
becomes bankrupt or makes any arrangement or composition with his
creditors generally, or
(c)
becomes of unsound mind, or of such infirm health as to be incapable of
managing his affairs, or
(d)
resigns his office by notice in writing to the Company, or
(e)
becomes a disqualified person as defined at section 111 of the Act
50.
A director may hold any other office or position of profit under the Company
(except that of auditor) in conjunction with his office of director, and may act in a
professional capacity to the Company on such terms as to remuneration and
otherwise as the directors shall arrange.
51.
A director may be or become a director other officer of, or otherwise interested in
any company promoted by the Company, or in which the Company may be
interested, as a member or otherwise, and no director shall be accountable for any
remuneration or other benefits received by him as director or officer or from his
interest in such other company. The directors may also exercise the voting powers
conferred by the shares in any other company held or owned by the Company in
such manner in all respects as they think fit, including the exercise thereof in favour
of any resolutions appointing them, or any of their number, directors or officers of
such other company, or voting or providing for the payment of remuneration to the
directors or officers of such other company. A director may vote in favour of the
exercise of such voting rights in manner aforesaid, notwithstanding that he may be,
or be about to become, a director or officer of such other company, and as such in
any other manner is, or may be, interested in the exercise of such voting rights in
manner aforesaid.
52.
No director shall be disqualified by reason of his office from contracting with the
Company, either as vendor, purchase or otherwise, nor shall any such contract or
arrangement entered into by or on behalf of the Company in which any director
shall be in any way interested be avoided, nor shall any director so contracting or
being so interested be liable to account to the Company for any profit realised by
any such contract or arrangement, by reason of such director holding that office or
of the fiduciary relationship thereby established. The nature of a director’s interest must
be declared by him at the meeting of the directors at which the question of entering into
the contract or arrangement is first taken into consideration, and if the director was not
at the date of that meeting interested in the proposed contract or arrangement, or shall
become interested in a contract or arrangement after it is made, he shall forthwith after
becoming so interested advise the Company in writing of the fact and nature of his
interest. A general notice to the directors by a director that he is a member of a
specified firm or company, and is to be regarded as interested in any contract or
transaction which may, after the date of notice, be made with such firm or company shall
(if such director shall give the same at a meeting of the directors, or shall take
reasonable steps to secure that the same is
13
brought up and read at the next meeting of directors after it is given) be a sufficient
declaration of interest in rotation to such contract or transaction with such firm or
company.
53.
A director may be counted as one of a quorum upon a motion in respect of any contract or
arrangement which he shall make with the Company, or in which he is so interested as
aforesaid, and may vote upon such motion.
OFFICERS
(a)
The Company may, by a resolution of directors, appoint officers of the
Company at such times as shall be considered necessary or expedient, and such
officers may consist of a President, one or more Vice-Presidents, a Secretary
and a Treasurer and such other officers as may from time to time be deemed
desirable. 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 by the directors thereafter, but in the absence of any specific
allocation of duties it shall be the responsibility of 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 Secretary to maintain the
registers, 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.
(b)
Any person may hold more than one office and no officer need be a director
or member of the Company. The officers shall remain in office until
removed from office by the directors whether or not a successor is
appointed.
55.
Any officer who is a body corporate may appoint any person its duly authorised
representative for the purpose of representing it and transacting any
of the business
of the officers.
56.
The Registered Agent may certify to whom it may concern the names and addresses
of the directors and officers of the Company and the terms of their incumbency.
POWERS OF DIRECTORS
57
The business and affairs of the Company shall be managed by the directors who may pay all
expenses incurred preliminary to and in connection with the formation and registration of
the Company, and may exercise all such powers of the Company as are not by the Act or by
these Regulations required to be exercised by the members subject to any delegation of such
powers as may be authorised by these
14
Regulations and to such requirements as may be prescribed by resolution of the members; but
no requirement made by resolution of the members shall invalidate any prior act of the
directors which would have been valid if such requirement had not been made.
Notwithstanding the generality of the foregoing the Company may by resolution of directors
exercise the several powers granted to it by Section 9 of the Act and by the Memorandum of
Association to inter alia transfer any of its assets in trust.
58.
The Board may entrust to and confer upon any director or officer any of the powers
exercisable by it upon such terms and conditions and with such restrictions as it
thinks fit, and either collaterally with, or to the exclusion of, its own powers, and
may from time to time revoke, withdraw, alter or vary all or any of such powers.
The directors may delegate any of their powers to committees consisting of such
member or members of their body as they think fit; any committee so formed shall
in the exercise of the powers so delegated conform to any regulations that may be
imposed on it by the directors.
59.
The Company may from time to time and at any time by resolution of directors
appoint any company, firm or person or body of persons, whether nominated
directly or indirectly by the directors, to be the attorney or attorneys of the
Company for such purposes and with such powers, authorities any discretions (not
exceeding those vested in or exercisable by the directors under these Regulations)
and for such period and subject to such conditions as they may think fit, and any
such powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney as the directors may think fit
and may also authorise any such attorney to delegate all or any of the powers,
authorities and discretions vested in him.
60.
Any director who is a body corporate may appoint any person its duly authorised
representative for the purpose of representing it at Board Meetings
and of
transacting any of the business of the directors.
61.
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 the Company shall from time to time by resolution of directors
determine.
62.
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.
63.
Subject to Regulation 41 the continuing directors may act notwithstanding any
vacancy in their body.
15
PROCEEDINGS OF DIRECTORS
64.
The directors may meet together for the despatch of business, adjourn and
otherwise regulate their meetings as they think fit. Questions arising at any
meeting shall be decided by a majority of votes; in case of an equality of votes the
Chairman shall have a second or casting vote. A director may at any time summon
a meeting of directors.
65.
Provided that there shall be more than one director the quorum for directors’
meetings shall be one third of the total number of directors and a minimum of 7
days notice (exclusive of the day of the meeting) shall be given to all directors and
alternate directors of any meeting of the board unless all the directors or their
alternates on their behalf shall waive such notice for any particular meeting or any
director shall waive his right to receive notice. Presence at the meeting shall be
deemed to constitute waiver.
66.
A sole director shall have full power to represent the Company notwithstanding the
reference in these Regulations to a Board of Directors consisting of more than one
person.
67.
The directors may elect a chairman of their meeting and determine the period for
which he is to hold office, but if no such chairman is present at the time appointed
for holding the same, the directors present shall choose one of their numbers to be
the chairman of such meeting.
68.
The directors may, subject to the Act, delegate any of their powers to committees
consisting of such of their body as they think fit; any committee so formed shall, in
the exercise of the powers so delegated conform to any regulations that may be
imposed on it by the directors.
69.
A committee may elect a chairman of its meeting; if no such chairman is elected, or
if he is not present at the time appointed for holding the meeting the members of the
committee present shall choose one of their number to be chairman of such
meeting.
70.
A committee may meet and adjourn as it thinks proper. Questions arising at any
meeting shall be determined by a majority of votes of its members present, and in
case of an equality of votes, the chairman shall have a second casting vote.
71.
All acts done by any meeting of the directors or of a committee of directors, or by
any person acting as a director, notwithstanding that it be afterwards discovered
that there was some defect in the appointment of any such directors or persons
acting as aforesaid, or that they or any of them were disqualified are hereby ratified
and shall be as valid as if every such person had been duly appointed and was
qualified to be a director.
16
72.
The directors shall cause the following books to be kept:
(a)
minutes of all meetings of directors, members and committees appointed by
them;
(b)
copies of all resolutions consented to by directors, members and
committees appointed by them;
(c)
such other books and records as may be necessary or desirable in their
opinion to reflect the financial position of the Company.
73.
A resolution approved by all the directors or members of a committee for the time being
entitled to receive notice of a meeting of the directors or of a committee of the directors
and taking the form of one or more documents in writing or messages transmitted by
teleprinter from a duly authenticated source shall be as valid and
effectual as if it had
been passed at a meeting of the directors on such committee duly convened and held. Any one
or more members of the board of directors or any committee thereof may participate in a
meeting of such board or committee by means of a conference telephone or similar
communication equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in person at a
meeting.
INDEMNITY
74.
Subject to the provisions of the Act every director or other officer of the Company shall be
entitled to be indemnified out of the assets of the Company against all losses or liabilities
which he may sustain or incur in or about the execution of the duties of his office or
otherwise in relation thereto, and no director or other officer shall be liable for any loss,
damage or misfortune which may happen to, or be incurred by the Company in the execution of
the duties of his office, or in relation thereto provided he acted honestly and in good faith
with a view to the best interest of the Company and except for his own wilful mis-conduct or
negligence.
SEAL
75.
The directors shall provide for the safe custody of the seal, and every instrument to which
the seal shall be affixed shall be signed by one or more persons so authorised from time to
time by the directors. If so authorised by resolution of directors, a facsimile of the seal
and of the signatures of any authorised signatory as is herein provided may be reproduced by
printing or other means on any instrument and 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.
DIVIDEND AND RESERVES
17
76.
The directors may from time to time declare and pay a dividend whether interim or
final and whether in money or in specie, but no dividend shall be declared and paid unless
the directors determine that immediately after payment of the dividend.
(a)
The Company will be able to satisfy its debts as they become due; and
(b)
The value of the assets of the Company exceeds that of its total liabilities
77.
The directors may, before declaring any dividend, set aside out of the profits of the
Company such sum as they think proper as a reserve fund for whatever purpose,
and may invest the sum so set apart as a reserve fund upon such securities as they
may select.
78.
The directors may deduct from the dividends payable to any shareholder all such
sums of money as may be due from him to the Company.
79.
Notice of any dividend that may have been declared shall be given to each
shareholder in manner hereinafter mentioned and all dividends unclaimed for three
years after having been declared may be forfeited by the directors for the benefit of
the Company.
80.
No dividends shall bear interest as against the Company.
81.
Any one of the joint holders of a share may give a valid receipt to the Company for
dividends paid thereon.
UNTS
82.
(a)
The Company shall keep the following documents at the office of its
registered agent:
(i)
The Memorandum and the Articles;
(ii)
The register of members, or a copy of the register of members;
(iii)
The register of directors, or a copy of the register of directors;
(iv)
The register of mortgages and charges (if any); and
(v)
Copies of all notices and other documents filed by the
Company with the Registrar of Corporate Affairs in the previous 10 years.
(b)
If the Company maintains only a copy of the register of members or a copy
of the register of directors at the office of its registered agent, it shall:
(i)
Within 15 days of any change in either register, notify the registered
18
agent in writing of the change; and
(ii)
Provide the registered agent with a written record of the
physical address of the place or places at which the original register of
members or the original register of directors is kept.
(c)
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:
(i)
Minutes of meetings and Resolutions of Shareholders and
classes of Shareholders;
(ii)
Minutes of meetings and Resolutions of Directors and
committees of directors; and
(iii)
An impression of the seal, if any.
(d)
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.
(e)
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 (No 5 of 2001).
83.
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;
(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
(e)
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.
84
(a)
The Company shall keep records that are sufficient to show and explain the
19
Company’s transactions and that will, at any time, enable the financial position of
the Company to be determined with reasonable accuracy.
(b)
The members of the Company may by resolution call for the directors to
prepare periodically and 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.
85.
If so required by the members, a copy of such profit and loss account and balance sheet shall
be served on every member in the manner to that prescribed herein for calling a meeting.
AUDIT
86.
The directors may call for the accounts to be examined by an auditor or auditors and shall do
so if required by a resolution of members.
87.
The auditors shall be appointed by the directors, unless otherwise appointed by a resolution
of members.
88.
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,
in the case of auditors appointed by the directors, may be fixed by
the directors,
(b)
subject to the foregoing, shall be fixed by the company by a resolution of
members.
90.
The auditors shall examine each profit and loss account and balance sheet required to be laid
before the Company in accordance with Regulation 84(b) 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.
91.
The report of the auditors shall be annexed to the accounts and shall be read at the meeting,
if any, at which the accounts are laid before the Company.
20
92.
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 officers of
the Company such information and explanations as he thinks necessary for the performance of
the duties of the auditors.
93.
The auditors of the Company shall be entitled to receive notice of, and to attend any meeting
of members of the Company at which the Company’s profit and loss account and balance sheet are
to be presented in accordance with Regulation 84(b)
CAPITALISATION OF PROFITS AND BONUS SHARES
94.
The directors may resolve that it is desirable to capitalize any part of the amount for the
time being standing to the credit of the Company’s surplus account or otherwise available for
distribution as a dividend and accordingly that such sum be set free for distribution amongst
the members who would have been entitled thereto if distributed by way of dividend and in the
same proportions on condition that the same be not paid in cash but applied either in or
towards paying up in full unissued shares or debentures of the Company to be allotted and
distributed credited as fully paid to and amongst such members.
95.
A share allotted in accordance with Regulation 94 hereof shall be treated for all purposes as
having been issued for money equal to the surplus that is transferred to capital upon the
issue of the share.
96.
In the case of an allotment of authorised but unissued shares with par value, an amount equal
to the aggregate par value of the shares shall be transferred from surplus to capital at the
time of the allotment.
97.
In the case of an allotment of authorised but unissued shares
without par value, the amount designated by the directors shall be transferred from surplus to capital at the time
of the allotment, except that the Company by resolution of directors must designate as
capital an amount that is at least equal to the amount that the shares are entitled to as
preference if any in the assets of the Company upon liquidation of the Company.
98.
The allotment of bonus shares shall for the purposes of the Act be treated as a dividend of
shares,
99.
The directors shall make all appropriations and applications of the surplus thereby resolved
to be capitalised and all allotments and issues of fully-paid shares or debentures if any,
and generally shall do all acts and things required to give effect thereto, with full power
to the directors to ignore fractions altogether or to determine that payment be made in cash
or otherwise as they think fit in the case of shares or debentures becoming distributable in
fractions, and also to authorise any person to enter on behalf of all the members entitled
thereto into an agreement with the Company providing for the allotment to them respectively,
credited as fully
21
paid, of any further shares or debentures to which they may be entitled upon such
capitalisation, and any agreement made under such authority shall be effective and binding
on all such shareholders. The directors may appoint any person to sign on behalf of the
person entitled to participate in the distribution arty contract necessary or desirable for
giving effect thereto and such appointment shall be effective and binding upon the
shareholders.
NOTICES
100.
A notice may be served by the Company upon any registered shareholder either personally or by
posting it by airmail service in a prepaid letter addressed to him at his address as shown in
the register of members or by cable or by telex should the directors think it appropriate
101.
All notices directed to be given to the shareholders shall, with respect to any share to
which persons are jointly entitled, be given to whichever of such persons is named first in
the Register of Shareholders, and notice so given shall be sufficient notice to all the
holders of such share.
102.
Any notice, if served post, shall be deemed to have been served within ten days of posting
and in proving such service, it shall be sufficient to prove that the letter containing the
notice was properly addressed and put into the Post Office. Notices by cable or by telex shall
be deemed to have been served 24 hours after despatch.
103.
Notice may be served on the Company by posting it by prepaid service addressed to the
Company at its Registered-Office or to its Registered Agent.
PENSION AND SUPERANNUATION FUNDS
104.
The directors may establish and maintain or procure the establishment and maintenance of any
non-contributory or contributory pension or superannuation funds for the benefit of, and give
or procure the giving of donations, gratuities pensions, allowances or emoluments to any
persons who are or were at any time in the employment or service of the Company or any company
which is a subsidiary of the Company or is allied to or associated with the Company or with
any such subsidiary or who are or were at any time directors or officers of the Company or of
any such other company as aforesaid or who hold or held any salaried employment or office in
the Company or such other company, or any persons in whose welfare the Company or any such
other company as aforesaid is or has been at any time interested, and to the wives, widows,
families and dependants of any such person, and may make payments for or towards the insurance
of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in
conjunction with any such other company as aforesaid. Subject always if the Act shall so
require to particulars with respect thereto being disclosed to the shareholders, and to the
proposals being approved by the Company by resolution of members, a
22
director holding any such employment or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension, allowance or emolument.
WINDING UP
105.
The Company may commence winding up and dissolve by resolution of members save that if the
Company has never issued shares, by resolution of directors. The Company and its liquidator
shall wind up the affairs of the Company pursuant to the provisions
of the Act.
ARBITRATION
106.
Whenever any differences arise between the Company on the one hand and any of the
shareholders, their executors, administrators or assigns on the other hand touching the true
intent and construction or the incidence or consequences of these presents or of the Act, or
touching anything then or thereafter done or executed, omitted or suffered in pursuance of
the Act ,or touching any breach or alleged breach or otherwise relating to the promises or to
these presents or to any Act affecting the Company or to any of the affairs of the Company,
such difference shall unless the parties agree to refer the same to a single arbitrator be
referred to two arbitrators who shall before entering on the reference appoint an umpire.
107.
If either party to the reference makes default in appointing an arbitrator either
originally or by way of substitution (in the event mat an appointed arbitrator shall die, be
incapable of acting or refuse to act) for ten days after the other party has given him notice
to appoint the same, such other party may appoint an arbitrator to act in the place of the
arbitrator of the defaulting party.
AMENDMENT TO ARTICLES
108.
The Company may by resolution of directors or by resolution of members alter or modify
these Regulations as originally drafted or as amended from time to
time.
CONTINUATION UNDER FOREIGN LAW
109.
The Company may by a resolution of directors or a resolution of members continue as a
company incorporated under the laws of another jurisdiction which may permit such
continuation and in the manner provided by those laws and may by a resolution of directors or
of members amend its Memorandum and Articles to be consistent therewith.
23
We, McNamara Corporate Services Limited
of 2nd
floor, 116 Main Street, Road Town
Tortola, British Virgin Islands for the purpose of disapplying part IV of schedule 2 of BVI
Business Companies Act, hereby signed as Registered Agent of the Company this 5’h day of
December 2007.
