Initial Public Offering (IPO): Registration Statement of a Foreign Private Issuer — Form F-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: F-1 Makemytrip Limited HTML 2.02M
2: EX-3.1 EX-3.1 Form of Constitution of Makemytrip Limited HTML 267K (Effective Upon the Closing of This Offering).
3: EX-4.1 EX-4.1 Form of Ordinary Share Certificate. HTML 12K
4: EX-5.1 EX-5.1 Opinion of Conyers Dill and Pearman HTML 25K
(Mauritius) Limited.
5: EX-8.1 EX-8.1 Opinion of Conyers Dill and Pearman HTML 18K
(Mauritius) Limited as to Certain
Mauritian Tax Matters.
6: EX-8.2 EX-8.2 Opinion of Latham and Watkins LLP as to HTML 21K
Certain Tax Matters.
7: EX-10.1.1 EX-10.1.1 Amended and Restated Makemytrip.Com 2001 HTML 114K
Equity Option Plan.
8: EX-10.1.2 EX-10.1.2 Makemytrip 2010 Share Incentive Plan. HTML 105K
21: EX-10.10 EX-10.10 Sanction Letter for Working Capital HTML 62K
Facilities Dated September 7, 2009 by
and Between Mmt India and Hdfc Bank
(Including Letter of Amendment).
22: EX-10.11 EX-10.11 Form of Director and Executive Officer HTML 56K
Indemnification Agreement.
9: EX-10.2 EX-10.2 Third Amended and Restated Shareholders HTML 312K
Agreement Dated May 20, 2008 by and
Among the Shareholders Named Therein and
Our Company.
10: EX-10.3 EX-10.3 Fourth Amended and Restated Shareholders HTML 90K
Agreement Dated July 16, 2010 by and
Among the Shareholders Named Therein and
Our Company.
11: EX-10.4 EX-10.4 Subscriber Agreement Dated February 4, HTML 66K
2009 (Effective as of February 1, 2009),
by and Between Mmt India and Amadeus
India Pvt. Ltd.
12: EX-10.5 EX-10.5 Passenger Sales Agency Agreement Dated HTML 37K
August 30, 2002 by and Between Mmt India
and Each Iata Member, Represented by the
Director General of Iata.
13: EX-10.6.1 EX-10.6.1 Business Process Outsourcing Services HTML 155K
Agreement Dated March 5, 2008 by and
Between Mmt India and Ibm Daksh Business
Process Services Private Limited, or Ibm
Daksh.
14: EX-10.6.2 EX-10.6.2 Statement of Work Dated March 5, 2008 by HTML 196K
and Between Mmt India and Ibm Daksh, or
the Ibm Statement of Work.
15: EX-10.6.3 EX-10.6.3 First Amendment to the Ibm Statement of HTML 99K
Work Dated July 16, 2008 (Effective as
of March 5, 2008), by and Between Mmt
India and Ibm Daksh.
16: EX-10.6.4 EX-10.6.4 Second Amendment to the Ibm Statement of HTML 84K
Work Dated July 28, 2009 (Effective as
of May 1, 2009), by and Between Mmt
India and Ibm Daksh.
17: EX-10.7.1 EX-10.7.1 Services Agreement, or the Tecnovate HTML 115K
Services Agreement, Dated March 25, 2009
by and Between Mmt India and Tecnovate
Esolutions Private Limited, or
Tecnovate.
18: EX-10.7.2 EX-10.7.2 Amendment to the Tecnovate Services HTML 40K
Agreement Dated June 4, 2010 (Effective
as of March 24, 2010), by and Between
Mmt India and Tecnovate.
19: EX-10.8 EX-10.8 Master Services Agreement Dated July 6, HTML 127K
2009 by and Between Mmt India and
Rightnow Technologies, Inc.
20: EX-10.9 EX-10.9 Lease Deed for Plot Number 103, Udyog HTML 66K
Vihar, Phase 1, Gurgaon, Haryana 122016,
India Dated October 25, 2007.
23: EX-21.1 EX-21.1 List of Subsidiaries of Makemytrip HTML 13K
Limited.
24: EX-23.4 EX-23.4 Consent of Kpmg, Registered Public HTML 12K
Accounting Firm.
EX-3.1 — EX-3.1 Form of Constitution of Makemytrip Limited (Effective Upon the Closing of This Offering). Exhibit Table of Contents
A PUBLIC COMPANY LIMITED BY SHARES
HOLDING A CATEGORY 1 GLOBAL BUSINESS LICENCE
CONSTITUTION
OF
MakeMyTrip Limited
(Adopted pursuant to a special resolution by way of written resolutions passed by the
shareholders of the Company on July 19 2010 and effective immediately upon the
completion of the Company’s initial public offering of ordinary shares on ___________ 2010)
The objects of the Company are to carry out any business or activity permitted
under its Category 1 Global Business Licence. To the extent permitted by Law, the
Company may effect any business transactions and take any steps which it considers
expedient to further the objects of the Company.
(b)
The Company shall have full capacity to carry on or undertake any business or
activity, do any act or enter into any transaction, subject to such restrictions and
limitations as may be provided under any conditions of its Category 1 Global Business
Licence.
(c)
The Company shall have for the purposes of Clause 1.3(b) above, full rights,
powers and privileges.
1.4
Type of Company and Liability of Shareholders
(a)
The Company is a public company limited by shares.
(b)
The liability of the Members is limited to any amount unpaid on their shares and
to such obligations as may be attached to their shares under the terms of their issue or
this Constitution.
1.5
Registered Office
The Office of the Company will be at c/o Multiconsult Limited, Rogers House, 5 President John
Kennedy Street, Port-Louis, Mauritius, or at such other place within Mauritius as the Board may,
from time to time, determine.
INTERPRETATION
2. (1) In this Constitution, unless the context otherwise requires, the words standing in the first
column of the following table shall bear the meaning set opposite them respectively in the second
column.
WORD
MEANING
“Act”
the Companies Act 2001 of Mauritius or any statutory modification, amendment
or re-enactment thereof for the
time being in force, and any reference to any provision
of the Act is to that provision as so modified, amended or
re-enacted or contained in any such subsequent act or acts.
“Audit Committee”
the audit committee of the Company formed by the Board pursuant to Clause
124 hereof, or any successor audit committee.
“Auditor”
the auditor of the Company for the time being and may include any individual or
partnership.
“Board” or “Directors”
the board of directors for the time being of the Company and acting
by resolution in accordance with the Act and this Constitution or the directors present
at a meeting of directors at which there is a quorum.
“capital”
the share capital from time to time of the Company.
“Category 1 Global
Business Licence”
a licence issued under section 72(6) of the Financial
Services Act 2007.
“Clause”
a clause of this Constitution.
“clear days”
in relation to the period of a notice, that period excluding the day when the
notice is given or deemed to be given and the day for which it is given or on which it
is to take effect.
“clearing house”
a clearing house recognised by the laws of the jurisdiction in which the
shares of the Company (or depositary receipts therefor) are listed or quoted on a stock
exchange or interdealer quotation system in such jurisdiction.
“Company”
MakeMyTrip Limited
“competent regulatory
authority”
a competent regulatory authority in the territory where
the shares of the Company (or depositary receipts therefor) are listed or quoted
on a stock exchange or interdealer quotation system in such territory.
“Constitution”
this Constitution in its present form or as supplemented or amended or
substituted from time to time.
“debenture” and
“debenture holder”
include debenture stock and debenture stockholder
respectively.
“depository”
a depository or other recognised securities clearing system or clearing house or its nominee(s) in the
jurisdiction where the shares of the Company (or depositary
receipts therefor) are listed or quoted on a Designated
Stock Exchange in such jurisdiction, which shall include the
Depository Trust Company or its nominee(s) in the United
States of America.
“Designated Stock Exchange”
the Nasdaq Stock Market or any other internationally
recognized stock exchange where the Company’s securities are traded
“Directors”
the directors for the time being of the Company and shall include an alternate
director.
“dollars”, “$” and
“US$”
dollars, the legal currency of the United States of America.
“head office”
such office of the Company as the Directors may from time to time
determine to be the principal office of the Company.
“Law”
the laws of Mauritius, including (without limitation) the Act and any other
act or regulation for the time being in force concerning public companies limited by
shares registered in Mauritius and affecting the Company.
“Listed Shares”
shares of the Company which have been admitted for quotation on a Designated
Stock Exchange for so long as any shares of the Company are listed or quoted on such
Designated Stock Exchange.
“Mauritius”
the Republic of Mauritius.
“Member”
a duly registered holder from time to time of the shares in the capital of the
Company.
“month”
a calendar month.
“Notice”
written notice unless otherwise specifically stated and as further defined in this
Constitution.
“Office”
the registered office of the Company for the time being.
“ordinary resolution”
a resolution that is approved by a simple majority of the votes of
those Members entitled to vote and voting on the matter which is the subject of the
resolution.
“paid up”
paid up or credited as paid up.
Register”
the principal register of Members and where applicable, any branch register of
Members of the Company to be
maintained at such place within or outside Mauritius as
the Board shall determine from time to time.
“Registration Office”
in respect of any class of share capital such place as the Board may
from time to time determine to keep a branch register of Members in respect of that
class of share capital and where (except in cases where the Board otherwise directs)
the transfers or other documents of title for such class of share capital are to be
lodged for registration and are to be registered.
“SEC”
the United States Securities and Exchange Commission.
“Seal”
common seal or any one or more duplicate seals of the Company (including a
securities seal, if any) for use in Mauritius or in any place outside Mauritius.
“Secretary”
any person, firm or corporation appointed by the Board to perform any of the
duties of secretary of the Company and includes any assistant, deputy, temporary or
acting secretary.
“special resolution”
a resolution approved by a majority of 75 per cent. (75%) or, if a
higher majority is required by this Constitution, that higher majority, of the votes of
those Members entitled to vote and voting on the question.
“Statutes”
the Act and every other law of the Legislature of Mauritius for the time being in
force applying to or affecting the Company and/or this Constitution.
“Treasury Share”
a share of the Company that was or is treated as having been acquired and
held by the Company and has been held continuously by the Company since it was so
acquired and has not been cancelled.
“year”
a calendar year.
(2) In this Constitution, unless there be something within the subject or context
inconsistent with such construction:
(a)
words importing the singular include the plural and vice versa;
(b)
words importing a gender include both gender and the neuter;
(c)
words importing persons include companies, associations and bodies of persons
whether corporate or not;
“shall” or “will” shall be construed as imperative;
(e)
expressions referring to writing shall, unless the contrary intention appears,
be construed as including printing, lithography, photography and other modes of
representing words or figures in a visible form, and including where the representation
takes the form of electronic display, provided that both the mode of service of the
relevant document or notice and the Member’s election comply with all applicable
Statutes, rules and regulations;
(f)
references to any law, ordinance, statute or statutory provision shall be
interpreted as relating to any statutory modification or re-enactment thereof for the
time being in force;
(g)
save as aforesaid words and expressions defined in the Statutes shall bear the
same meanings in this Constitution if not inconsistent with the subject in the context;
(h)
references to a document being executed include references to it being executed
under hand or under seal or by electronic signature or by any other method and
references to a notice or document include a notice or document recorded or stored in
any digital, electronic, electrical, magnetic or other retrievable form or medium and
information in visible form whether having physical substance or not;
(i)
a special resolution shall be effective for any purpose for which an ordinary
resolution is expressed to be required under any provision of this Constitution or the
Statutes.
SHARE CAPITAL
3. (1) The stated capital of the Company at the date on which this Constitution comes into effect
shall be divided into ordinary shares of a par value of US$0.0005 each.
(2) The Company may purchase or otherwise acquire its own shares for cancellation or hold
shares purchased or acquired by the Company as Treasury Shares in accordance with the Act on such
terms as the Board shall think fit. Subject to the Law, this Constitution and, where applicable,
the rules of the Designated Stock Exchange and/or any competent regulatory authority, any power of
the Company to purchase or otherwise acquire its own shares shall be exercisable by the Board in
such manner, upon such terms and subject to such conditions as it may from time to time think fit.
The Company may transfer any Treasury Shares purchased or acquired by it pursuant to the Act.
(3) Neither the Company nor any of its subsidiaries shall directly or indirectly give
financial assistance to a person who is acquiring or proposing to acquire shares in the Company for
the purpose of that acquisition whether before or at the same time as the
acquisition takes place or afterwards PROVIDED that nothing in this Constitution shall
prohibit transactions permitted by the Act.
4. The Company may from time to time by ordinary resolution in accordance with the Law:
(a)
increase its capital by such sum, to be divided into shares of such classes and
amounts, as the resolution shall prescribe;
(b)
consolidate and divide all or any of its capital into shares of a larger amount
than its existing shares;
(c)
divide its shares into several classes and without prejudice to any special
rights previously conferred on the holders of existing shares attach thereto
respectively any preferential, deferred, qualified or special rights, privileges,
conditions or such restrictions which in the absence of any such determination by the
Company in Members’ meeting, as the Directors may determine provided always that where
the Company issues shares which do not carry voting rights, the words “non-voting”
shall appear in the designation of such shares and where the equity capital includes
shares with different voting rights, the designation of each class of shares, other
than those with the most favourable voting rights, must include the words “restricted
voting” or “limited voting”;
(d)
sub-divide its shares, or any of them, into shares of a smaller amount than is
fixed by this Constitution (subject, nevertheless, to the Law), and may by such
resolution determine that, as between the holders of the shares resulting from such
sub-division, one or more of the shares may have any such preferred, deferred or other
rights or be subject to any such restrictions as compared with the other or others as
the Company has power to attach to new shares;
(e)
cancel any shares which, at the date of the passing of the resolution, have not
been taken, or agreed to be taken, by any person, and diminish the amount of its
capital by the amount of the shares so cancelled in accordance with the Act or, in the
case of shares without par value, diminish the number of shares into which its capital
is divided.
5. The Board may settle as it considers expedient any difficulty which arises in relation to any
consolidation and division under the last preceding Clause and in particular but without prejudice
to the generality of the foregoing may arrange for the sale of the shares representing fractions
and the distribution of the net proceeds of sale (after deduction of the expenses of such sale) in
due proportion amongst the Members who would have been entitled to the fractions, and for this
purpose the Board may authorise some person to transfer the shares representing fractions to their
purchaser or resolve that such net proceeds be paid to the Company for the Company’s benefit. Such
purchaser will not be bound to see to the application of the purchase money nor will his title to
the shares be affected by any irregularity or invalidity in the proceedings relating to the sale.
6. The Company may from time to time by special resolution, subject to any confirmation or consent
required by the Law, reduce its share capital or any capital redemption reserve in any manner
permitted by law.
7. Except so far as otherwise provided by the conditions of issue, or by this Constitution, any
capital raised by the creation of new shares shall be treated as if it formed part of the original
capital of the Company, and such shares shall be subject to the provisions contained in this
Constitution with reference to the payment of calls and instalments, transfer and transmission,
forfeiture, lien, cancellation, surrender, voting and otherwise.
SHARE RIGHTS
8. Subject to the provisions of the Law, the rules of the Designated Stock Exchange and this
Constitution and to any special rights conferred on the holders of any shares or class of shares,
any share in the Company (whether forming part of the present capital or not) may be issued with or
have attached thereto such rights or restrictions whether in regard to dividend, voting, return of
capital or otherwise as the Company may determine or, if there has not been any such determination
or so far as the same shall not make specific provision, as the Board may determine.
9. Subject to the Law, any preferred shares may be issued or converted into shares that, at a
determinable date or at the option of the Company or the holder if so authorised by its
constitution, are liable to be redeemed on such terms and in such manner as the Company may by
ordinary resolution of the Members or the Board before the issue or conversion may determine.
VARIATION OF RIGHTS
10. Subject to the Law and without prejudice to Clause 8, all or any of the special rights for the
time being attached to the shares or any class of shares may, unless otherwise provided by the
terms of issue of the shares of that class, from time to time (whether or not the Company is being
wound up) be varied, modified or abrogated with the sanction of a special resolution passed at a
separate meeting of the holders of the shares of that class. To every such separate Members’
meeting all the provisions of this Constitution relating to Members’ meetings of the Company shall,
mutatis mutandis, apply, but so that:
(a)
the necessary quorum (whether at a separate Members’ meeting or at its
adjourned meeting) shall be a person or persons (or in the case of a Member being a
corporation, its duly authorized representative) together holding or representing by
proxy not less than one-third in nominal value of the issued shares of that class;
(b)
every holder of shares of the class shall be entitled on a poll to one vote for
every such share held by him; and
(c)
any holder of shares of the class present in person or by proxy or authorised
representative may demand a poll.
11. Subject to the Act, the special rights conferred upon the holders of any shares or class of
shares shall not, unless otherwise expressly provided in the rights attaching to or
the terms of issue of such shares, be deemed to be varied, modified or abrogated by the creation or
issue of further shares ranking pari passu therewith.
SHARES
12. (1) Subject to the Law, the provisions of this Constitution and, where applicable, the rules of
the Designated Stock Exchange and without prejudice to any special rights or restrictions for the
time being attached to any shares or any class of shares, the Board may offer, issue, grant options
over or otherwise dispose of shares of the Company to such persons, at such times and for such
consideration and upon such terms and conditions as the Board may in its absolute discretion
determine but so that no shares shall be issued at a discount.
(2) Neither the Company nor the Board shall be obliged, when making or granting any allotment
of, offer of, option over or disposal of shares, to make, or make available, any such allotment,
offer, option or shares to Members or others with registered addresses in any particular territory
or territories being a territory or territories where, in the absence of a registration statement
or other special formalities, this would or might, in the opinion of the Board, be unlawful or
impracticable. Members affected as a result of the foregoing sentence shall not be, or be deemed
to be, a separate class of members for any purpose whatsoever.
(3) The Board may issue options, warrants or convertible securities or securities of similar
nature conferring the right upon the holders thereof to subscribe for, purchase or receive any
class of shares or securities in the capital of the Company on such terms as it may from time to
time determine.
13. The Company may in connection with the issue of any shares exercise all powers of paying
commission and brokerage conferred or permitted by the Law. Subject to the Law, the commission may
be satisfied by the payment of cash or by the allotment of fully or partly paid shares or partly in
one and partly in the other.
14. Except as required by law, no person shall be recognised by the Company as holding any share
upon any trust and the Company shall not be bound by or required in any way to recognise (even when
having notice thereof) any equitable, contingent, future or partial interest in any share or any
fractional part of a share or (except only as otherwise provided by this Constitution or by law)
any other rights in respect of any share except an absolute right to the entirety thereof in the
registered holder.
15. Subject to the Law and this Constitution, the Board may at any time after the allotment of
shares but before any person has been entered in the Register as the holder, recognise a
renunciation thereof by the allottee in favour of some other person and may accord to any allottee
of a share a right to effect such renunciation upon and subject to such terms and conditions as the
Board considers fit to impose.
16. (1) For so long as any shares of the Company are listed on a Designated Stock Exchange, the
Company may issue Listed Shares in uncertificated form where authorized by a resolution of the
Board. Notwithstanding anything contained in this Constitution, no share certificates shall be
issued in respect of Listed Shares and the Company shall not be bound to issue any share
certificate in respect of any Listed Shares to the holders thereof.
(2) For so long as the shares of the Company are listed on a Designated Stock Exchange, the
Company may and is expressly authorized to convert certificated shares into uncertificated shares
where such conversion is authorized by a resolution of the Board.
(3) Every share certificate shall be issued under the Seal or a facsimile thereof or bearing
the signature (or a facsimile thereof) of a Director or the Secretary or a person expressly
authorised to sign and shall specify the number and class and distinguishing numbers (if any) of
the shares to which it relates, and the amount paid up thereon and may otherwise be in such form as
the Directors may from time to time determine. No certificate shall be issued representing shares
of more than one class. The Board may by resolution determine, either generally or in any
particular case or cases, that any signatures on any such certificates (or certificates in respect
of other securities) need not be autographic but may be affixed to such certificates by some
mechanical means or may be printed thereon.
17. (1) In the case of a share (not being a Listed Share) held jointly by several persons, the
Company shall not be bound to issue more than one certificate therefor and delivery of a
certificate to one of several joint holders shall be sufficient delivery to all such holders.
(2) Where a share stands in the names of two or more persons, the person first named in the
Register shall as regards service of notices and, subject to the provisions of this Constitution,
all or any other matters connected with the Company, except the transfer of the shares, be deemed
the sole holder thereof.
18. Other than a holder of Listed Shares or a Listed Share, every person whose name is entered,
upon an allotment of shares, as a Member in the Register shall be entitled, without payment, to
receive one certificate for all such shares of any one class or several certificates each for one
or more of such shares of such class upon payment for every certificate after the first of such
reasonable out-of-pocket expenses as the Board from time to time determines.
19. Save in respect of Listed Shares, share certificates shall be issued within the relevant time
limit as prescribed by the Law or as the Designated Stock Exchange may from time to time determine,
whichever is the shorter, after allotment or, except in the case of a transfer which the Company is
for the time being entitled to refuse to register and does not register, after lodgment of a
transfer with the Company.
20. (1) Upon every transfer of shares (not being Listed Shares), the certificate held by the
transferor shall be given up to be cancelled, and shall forthwith be cancelled accordingly, and a
new certificate shall be issued to the transferee in respect of the shares (not being Listed
Shares) transferred to him at such fee as is provided in Clause 20(2). Where a Member transfers
part only of the shares (not being Listed Shares) comprised in a certificate or where a Member
requires the Company to cancel any certificate or certificates and issue new certificates for the
purpose of subdividing his holding in a different manner, the old
certificate or certificates shall be cancelled and a new certificate or certificates for the
balance of such shares be issued in lieu thereof and such Member shall pay all or any part of the
stamp duty payable (if any) on each share certificate prior to the delivery thereof which the Board
in its absolute discretion may require and such fee as is provided in Clause 20(2).
(2) The fee referred to in paragraph (1) above shall be an amount not exceeding the relevant
maximum amount as the Designated Stock Exchange may from time to time determine provided that the
Board may at any time determine a lower amount for such fee.
21. If a share certificate shall be damaged or defaced or alleged to have been lost, stolen or
destroyed, a new duplicate certificate representing the same shares (not being Listed Shares) may
be issued to the relevant Member upon request and on payment of such fee as may be prescribed by
the Act and, subject to compliance with such terms (if any) as to evidence and indemnity and to
payment of the costs and reasonable out-of-pocket expenses of the Company in investigating such
evidence and preparing such indemnity as the Board may think fit and, in case of damage or
defacement, on delivery of the old certificate to the Company.
LIEN
22. The Company shall have a first and paramount lien on every share (not being a fully paid share)
for all moneys (whether presently payable or not) called or payable at a fixed time in respect of
that share. The Company shall also have a first and paramount lien on every share (not being a
fully paid share) registered in the name of a Member (whether or not jointly with other Members)
for all amounts of money presently payable by such Member or his estate to the Company whether the
same shall have been incurred before or after notice to the Company of any equitable or other
interest of any person other than such member, and whether the period for the payment or discharge
of the same shall have actually arrived or not, and notwithstanding that the same are joint debts
or liabilities of such Member or his estate and any other person, whether a Member of the Company
or not. The Company’s lien on a share shall extend to all dividends or other moneys payable
thereon or in respect thereof. The Board may at any time, generally or in any particular case,
waive any lien that has arisen or declare any share exempt in whole or in part, from the provisions
of this Clause.
23. Subject to this Constitution, the Company may sell in such manner as the Board determines any
share on which the Company has a lien, but no sale shall be made unless: (a) a sum in
respect of which the lien exists is presently payable; and (b) until the expiry of 14 days after a
written notice, stating and demanding payment of such part of the amount in respect of which the
privilege or lien exists as is presently payable, has been given to the registered holder for the
time being of the share, or the person entitled to the share by reason of the death or bankruptcy
of the registered holder.
24. The net proceeds of the sale shall be received by the Company and applied in or towards payment
or discharge of the debt or liability in respect of which the lien exists, so far as the same is
presently payable, and any residue shall (subject to a like lien for debts or liabilities not
presently payable as existed upon the share prior to the sale) be paid to the person entitled to
the share at the time of the sale. To give effect to any such sale the Board may authorise some
person to transfer the shares sold to the purchaser thereof. The purchaser shall be registered as
the holder of the shares so transferred and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any irregularity or invalidity in
the proceedings relating to the sale.
CALLS ON SHARES
25. Subject to the provisions of this Constitution and to the terms of allotment, the Board may
from time to time make calls upon the Members in respect of any moneys unpaid on their shares
(whether on account of the nominal value of the shares or by way of premium), and each Member shall
(subject to being given at least fourteen (14) clear days’ Notice specifying the time and place of
payment) pay to the Company as required by such notice the amount called on his shares. A call may
be extended, postponed or revoked in whole or in part as the Board in its sole discretion shall
determine.
26. A call shall be deemed to have been made at the time when the resolution of the Board
authorising the call was passed and may be made payable either in one lump sum or by instalments.
27. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding
the subsequent transfer of the shares in respect of which the call was made. The joint holders of
a share shall be jointly and severally liable to pay all calls and instalments due in respect
thereof or other moneys due in respect thereof.
28. If a sum called in respect of a share is not paid before or on the day appointed for payment
thereof, the person from whom the sum is due shall pay interest on the amount unpaid from the day
appointed for payment thereof to the time of actual payment at such rate (not exceeding twenty per
cent. (20%) per annum) as the Board may determine, but the Board may in its absolute discretion
waive payment of such interest wholly or in part.
29. No Member shall be entitled to receive any dividend or bonus or to be present and vote (save as
proxy for another Member) at any meeting of the Members either personally or by proxy, or be
reckoned in a quorum, or exercise any other privilege as a Member until all calls or instalments
due by him to the Company, whether alone or jointly with any other person, together with interest
and expenses (if any) shall have been paid.
30. On the trial or hearing of any action or other proceedings for the recovery of any money due
for any call, it shall be sufficient to prove that the name of the Member sued is entered in the
Register as the holder, or one of the holders, of the shares in respect of which such debt accrued,
that the resolution making the call is duly recorded in the minute book, and that notice of such
call was duly given to the Member sued, in pursuance of these Clauses; and it shall not be
necessary to prove the appointment of the Directors who made such call, nor any other matters
whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.
31. Any amount payable in respect of a share upon allotment or at any fixed date, whether in
respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call
duly made and payable on the date fixed for payment and if it is not paid, the provisions of these
Clauses shall apply as if that amount had become due and payable by virtue of a call duly made and
notified.
32. On the issue of shares the Board may differentiate between the allottees or holders as to the
amount of calls to be paid and the times of payment.
33. The Board may, if it thinks fit, receive from any Member willing to advance the same, and
either in money or money’s worth, all or any part of the moneys uncalled and unpaid or instalments
payable upon any shares held by him and upon all or any of the moneys
so advanced (until the same would, but for such advance, become presently payable) pay interest at
such rate (if any) as the Board may decide. The Board may at any time repay the amount so advanced
upon giving to such Member not less than one month’s Notice of its intention in that behalf, unless
before the expiration of such notice the amount so advanced shall have been called up on the shares
in respect of which it was advanced. Such payment in advance shall not entitle the holder of such
share or shares to participate in respect thereof in a dividend subsequently declared.
FORFEITURE OF SHARES
34. (1) If a call remains unpaid after it has become due and payable the Board may give to the
person from whom it is due not less than fourteen (14) clear days’ Notice:
(a)
requiring payment of the amount unpaid together with any interest which may
have accrued and which may still accrue up to the date of actual payment; and
(b)
stating that if the Notice is not complied with the shares on which the call
was made will be liable to be forfeited.
(2) If the requirements of any such Notice are not complied with, any share in respect of
which such Notice has been given may at any time thereafter, before payment of all calls and
interest due in respect thereof has been made, be forfeited by a resolution of the Board to that
effect, and such forfeiture shall include all dividends and bonuses declared in respect of the
forfeited share but not actually paid before the forfeiture.
35. When any share has been forfeited, notice of the forfeiture shall be served upon the person who
was before forfeiture the holder of the share. No forfeiture shall be invalidated by any omission
or neglect to give such Notice.
36. The Board may accept the surrender of any share liable to be forfeited hereunder and, in such
case, references in this Constitution to forfeiture will include surrender.
37. (1) Any share so forfeited shall be deemed the property of the Company and may be sold,
re-allotted or otherwise disposed of to such person, upon such terms and in such manner as the
Board determines, and at any time before a sale, re-allotment or disposition the forfeiture may be
annulled by the Board on such terms as the Board determines.
(2) If any shares are forfeited and sold, any residue after the satisfaction of the unpaid
calls and any accrued interests and expenses shall be paid to the person whose shares have been
forfeited, or his executors, administrators or assignees or as he directs.
38. A person whose shares have been forfeited shall cease to be a Member in respect of the
forfeited shares but nevertheless shall remain liable to pay the Company all moneys which at the
date of forfeiture were presently payable by him to the Company in respect of the shares, with (if
the Directors shall in their discretion so require) interest thereon from the date of forfeiture
until payment at such rate (not exceeding twenty per cent. (20%) per annum) as the Board
determines. The Board may enforce payment thereof if it thinks fit, and without any deduction or
allowance for the value of the forfeited shares, at the date of forfeiture, but his liability shall
cease if and when the Company shall have received payment in full of all such moneys in respect of
the shares. For the purposes of this Clause any sum which, by the terms of issue of a share, is
payable thereon at a fixed time which is subsequent to the date of forfeiture, whether on account
of the nominal value of the share or by way of premium, shall notwithstanding that time has not yet
arrived be deemed to be payable at the date of forfeiture, and the same shall become due and
payable immediately upon the forfeiture, but interest thereon shall only be payable in respect of
any period between the said fixed time and the date of actual payment.
39. A declaration in writing by a Director that a share has been forfeited on a specified date
shall be conclusive evidence of the facts therein stated as against all persons claiming to be
entitled to the share, and such declaration shall (subject to the execution of an instrument of
transfer by the Company if necessary) constitute a good title to the share, and the person to whom
the share is disposed of shall be registered as the holder of the share and shall not be bound to
see to the application of the consideration (if any), nor shall his title to the share be affected
by any irregularity in or invalidity of the proceedings in reference to the forfeiture, sale or
disposal of the share. When any share shall have been forfeited, notice of the declaration shall
be given to the Member in whose name it stood immediately prior to the forfeiture, and an entry of
the forfeiture, with the date thereof, shall forthwith be made in the register, but no forfeiture
shall be in any manner invalidated by any omission or neglect to give such notice or make any such
entry.
40. Notwithstanding any such forfeiture as aforesaid the Board may at any time, before any shares
so forfeited shall have been sold, re-allotted or otherwise disposed of, permit the shares
forfeited to be bought back upon the terms of payment of all calls and interest due upon and
expenses incurred in respect of the share, and upon such further terms (if any) as it thinks fit.
41. The forfeiture of a share shall not prejudice the right of the Company to any call already made
or instalment payable thereon.
42. The provisions of this Constitution as to forfeiture shall apply in the case of non-payment of
any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on
account of the nominal value of the share or by way of premium, as if the same had been payable by
virtue of a call duly made and notified.
REGISTER OF MEMBERS
43. (1) The Company shall keep in one or more books a Register of its Members and shall enter
therein particulars required by the Act.
(2) Subject to the Act, the Company may keep an overseas or local or other branch register of
Members resident in any place, and the Board may make and vary such regulations as it determines in
respect of the keeping of any such register and maintaining a Registration Office in connection
therewith.
44. The Register and branch register of Members, as the case may be, shall be open to inspection
for such times and on such days in accordance with the Act. The Register including any overseas or
local or other branch register of Members may, after compliance with any notice requirement of the
Designated Stock Exchange, be closed at such times or for such periods not exceeding in the whole
thirty (30) days in each year as the Board may determine and either generally or in respect of any
class of shares.
RECORD DATES
45. (1) For the purpose of determining the Members entitled to notice of or to vote at any Members’
meeting, or any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of shares or for the purpose of any other lawful action, the Board
may fix, in advance, a date as the record date for any such determination of Members, which date
shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting,
nor more than sixty (60) days prior to any other such action.
(2) If the Board does not fix a record date for any Members’ meeting, the record date for
determining the Members entitled to a notice of or to vote at such meeting shall be at the close of
business on the day next preceding the day on which notice is given, or, if in accordance with this
Constitution notice is waived, at the close of business on the day next preceding the day on which
the meeting is held.
(3) For the purpose of determining the Members entitled to express consent to Members’
resolution(s) in writing without a meeting, the Board may fix any date as the record date for
determining the Members entitled to express consent to such resolution(s) in writing.
(4) A determination of the Members of record entitled to notice of or to vote at a meeting of
the Members shall apply to any adjournment of the meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
TRANSFER OF SHARES
46. Subject to the provisions of this Constitution, any Member may transfer all or any of his
shares by an instrument of transfer in the usual or common form or in a form prescribed by the
Designated Stock Exchange or in any other form approved by the Board and may be under hand or, if
the transferor or transferee is a clearing house or a central depository house or its nominee(s),
by hand or by machine imprinted signature or by such other manner of execution as the Board may
approve from time to time.
47. The instrument of transfer shall be executed by or on behalf of the transferor and the
transferee provided that the Board may dispense with the execution of the instrument of transfer by
the transferee in any case which it thinks fit in its discretion to do so. Without
prejudice to
the last preceding Clause, the Board may also resolve, either generally or in any particular case,
upon request by either the transferor or transferee, to accept mechanically executed transfers.
The transferor shall be deemed to remain the holder of the share until the name of the transferee
is entered in the Register in respect thereof. Nothing in this
Constitution shall preclude the Board from recognising a renunciation of the allotment or
provisional allotment of any share by the allottee in favour of some other person.
48. (1) The Board may, in its absolute discretion, refuse to register a transfer of any share (not
being a fully paid up share) to a person of whom it does not approve, or any share issued under any
share incentive scheme for employees upon which a restriction on transfer imposed thereby still
subsists, and it may also, without prejudice to the foregoing generality, refuse to register a
transfer of any share (not being a fully paid up share) on which the Company has a lien.
(2) The Board in so far as permitted by any applicable law may, in its absolute discretion, at
any time and from time to time transfer any share upon the Register to any branch register or any
share on any branch register to the Register or any other branch register. In the event of any
such transfer, the shareholder requesting such transfer shall bear the cost of effecting the
transfer unless the Board otherwise determines.
(3) Unless the Board otherwise agrees (which agreement may be on such terms and subject to
such conditions as the Board in its absolute discretion may from time to time determine, and which
agreement the Board shall, without giving any reason therefor, be entitled in its absolute
discretion to give or withhold), no shares upon the Register shall be transferred to any branch
register nor shall shares on any branch register be transferred to the Register or any other branch
register and all transfers and other documents of title shall be lodged for registration, and
registered, in the case of any shares on a branch register, at the relevant Registration Office,
and, in the case of any shares on the Register, at the Office or such other place at which the
Register is kept in accordance with the Law.
49. Without limiting the generality of the last preceding Clause, the Board may decline to
recognise any instrument of transfer unless:-
(a)
a fee of such maximum sum as the Designated Stock Exchange may determine to be
payable or such lesser sum as the Board may from time to time require is paid to the
Company in respect thereof;
(b)
the instrument of transfer is in respect of only one class of share; and
(c)
the instrument of transfer is lodged at the Office or at such other place (if
any) which the Board may appoint accompanied by the relevant share certificate(s) and
such other evidence as the Board may reasonably require to show the right of the
transferor to make the transfer (and, if the instrument of transfer is executed by some
other person on his behalf, the authority of that person so to do).
50. If the Board refuses to register a transfer of any share, it shall, within 28 days after the
date on which the transfer was lodged with the Company, send to each of the transferor and the
transferee notice of the refusal as required by the Act and the reasons for the refusal will be
given in the notice.
51. The registration of transfers of shares or of any class of shares may, after compliance with
any notice requirement of the Designated Stock Exchange, be suspended at such times and for such
periods (not exceeding in the whole thirty (30) days in any year) as the Board may determine.
TRANSMISSION OF SHARES
52. If a Member dies, the survivor or survivors where the deceased was a joint holder, and his
legal personal representatives where he was a sole or only surviving holder, will be the only
persons recognised by the Company as having any title to his interest in the shares; but nothing in
this Clause will release the estate of a deceased Member (whether sole or joint) from any liability
in respect of any share which had been solely or jointly held by him.
53. Any person becoming entitled to a share in consequence of the death or bankruptcy or winding-up
of a Member may, upon such evidence as to his title being produced as may be required by the Board,
elect either to become the holder of the share or to have some person nominated by him registered
as the transferee thereof. If he elects to become the holder he shall notify the Company in
writing either at the Registration Office or Office, as the case may be, to that effect. If he
elects to have another person registered he shall execute a transfer of the share in favour of that
person. The provisions of this Constitution relating to the transfer and registration of transfers
of shares shall apply to such notice or transfer as aforesaid as if the death or bankruptcy of the
Member had not occurred and the notice or transfer were a transfer signed by such Member.
54. A person becoming entitled to a share by reason of the death or bankruptcy or winding-up of a
Member shall be entitled to the same dividends and other advantages to which he would be entitled
if he were the registered holder of the share. However, the Board may, if it thinks fit, withhold
the payment of any dividend payable or other advantages in respect of such share until such person
shall become the registered holder of the share or shall have effectually transferred such share,
but, subject to the requirements of Clause 75(2) being met, such a person may vote at meetings.
UNTRACEABLE MEMBERS
55. (1) Without prejudice to the rights of the Company under paragraph (2) of this Clause, the
Company may cease sending cheques for dividend entitlements or dividend warrants by post if such
cheques or warrants have been left uncashed on two consecutive occasions. However, the Company may
exercise the power to cease sending cheques for dividend entitlements or dividend warrants after
the first occasion on which such a cheque or warrant is returned undelivered.
(2) The Company shall have the power to sell, in such manner as the Board thinks fit, any
shares of a Member who is untraceable, but no such sale shall be made unless:
(a)
all cheques or warrants in respect of dividends of the shares in question,
being not less than three in total number, for any sum payable in cash to the holder of
such shares in respect of them sent during the relevant period in the manner authorised
by this Constitution have remained uncashed;
(b)
so far as it is aware at the end of the relevant period, the Company has not at
any time during the relevant period received any indication of the existence of the
Member who is the holder of such shares or of a person entitled to such shares by
death, bankruptcy or operation of law; and
(c)
the Company, if so required by the rules governing the listing of shares on the
Designated Stock Exchange, has given notice to, and caused advertisement in
newspapers to be made in accordance with the requirements of, the Designated Stock
Exchange of its intention to sell such shares in the manner required by the
Designated Stock Exchange, and a period of three months or such shorter period as
may be allowed by the Designated Stock Exchange has elapsed since the date of such
advertisement.
For the purpose of the foregoing, the “relevant period” means the period commencing twelve
(12) years before the date of publication of the advertisement referred to in paragraph (c) of this
Clause and ending at the expiry of the period referred to in that paragraph.
(3) To give effect to any such sale the Board may authorise some person to transfer the said
shares and an instrument of transfer signed or otherwise executed by or on behalf of such person
shall be as effective as if it had been executed by the registered holder or the person entitled by
transmission to such shares, and the purchaser shall not be bound to see to the application of the
purchase money nor shall his title to the shares be affected by any irregularity or invalidity in
the proceedings relating to the sale. The net proceeds of the sale will belong to the Company and
upon receipt by the Company of such net proceeds it shall become indebted to the former Member for
an amount equal to such net proceeds. No trust shall be created in respect of such debt and no
interest shall be payable in respect of it and the Company shall not be required to account for any
money earned from the net proceeds which may be employed in the business of the Company or as it
thinks fit. Any sale under this Clause shall be valid and effective notwithstanding that the
Member holding the shares sold is dead, bankrupt or otherwise under any legal disability or
incapacity.
MEMBERS’ MEETINGS
56. An annual meeting of the Members of the Company shall be held each year at such time and place
as may be determined by the Board, provided that an annual meeting shall be held not more than once
in each year and not later than 6 months after the balance sheet date of the Company and not later
than 15 months after the previous annual meeting of the Company.
57. Each Members’ meeting, other than an annual meeting, shall be called a special meeting. All
Members’ meetings (including annual meetings of the Company) may be held at such times and in any
location in the world as may be determined by the Board.
58. The Board may whenever it thinks fit call special meetings, and, subject to the Act, Members
holding at the date of deposit of the requisition not less than 5 per cent (5%) of the voting
rights entitled to be exercised on the issue shall at all times have the right, by written
requisition to the Board or the Secretary of the Company, to require a special meeting to be called
by the Board for the transaction of any business specified in such requisition; and such meeting
shall be held within two (2) months after the deposit of such requisition.
NOTICE OF MEMBERS’ MEETINGS
59. (1) At least fourteen (14) clear days’ Notice of a Members’ meeting shall be given to each
Member entitled to attend and vote thereat. A Members’ meeting at which the passing of a special
resolution is to be considered shall be called by not less than twenty-one (21) clear days’ Notice.
A Members’ meeting, whether or not a special resolution will be considered at such meeting, may be
called by shorter notice if it is so agreed by all the Members entitled to attend and vote thereat.
(2) The notice shall specify the time and place of the meeting, the nature of the business to
be transacted at the meeting in sufficient detail to enable a Member to form a reasoned judgment in
relation to it and the text of any special resolution to be submitted to the meeting. The notice
convening an annual meeting shall specify the meeting as such. Notice of every Members’ meeting
shall be given to all Members other than to such Members as, under the provisions of this
Constitution or the terms of issue of the shares they hold, are not entitled to receive such
notices from the Company, to all persons entitled to a share in consequence of the death or
bankruptcy or winding-up of a Member and to each of the Directors and the Auditors.
(3) The Secretary may postpone any Members’ meeting called in accordance with the provisions
of this Constitution (other than a meeting requisitioned under this Constitution) provided that
notice of postponement is given to each Member before the time for such meeting. Fresh notice of
the date, time and place for the postponed meeting shall be given to each Member in accordance with
the provisions of this Constitution.
60. The accidental omission to give Notice of a meeting or (in cases where instruments of proxy are
sent out with the Notice) to send such instrument of proxy to, or the non-receipt of such Notice or
such instrument of proxy by, any person entitled to receive such Notice shall not invalidate any
resolution passed or the proceedings at that meeting.
PROCEEDINGS AT MEMBERS’ MEETINGS
61. (1) Members may participate in any Members’ meeting by means of such telephone, electronic or
other communication facilities as permit all persons participating in the meeting to communicate
with each other simultaneously and instantaneously, and participation in such a meeting shall
constitute presence in person at such meeting.
(2) All business that is transacted at an annual meeting shall be deemed special, with the
exception of:
consideration and adoption of the accounts and balance sheet and the reports
of the Directors and Auditors and other documents required to be annexed to the
balance sheet;
(c)
the election, appointment or re-appointment of Directors;
(d)
appointment or re-appointment of Auditors (where special notice of the
intention for such appointment is not required by the Law) and other officers; and
(e)
the fixing of the remuneration of the Auditors, and the voting of
remuneration or extra remuneration to the Directors.
(3) No business, other than the appointment of a chairman of a meeting, shall be transacted at
any Members’ meeting unless a quorum of Members is present at the time when the meeting proceeds to
business. Except as herein otherwise provided, a quorum for a meeting of Members shall be present
where the Members or their proxies, or being a corporation by its representative duly authorized,
are present or have cast postal votes, who are between them able to exercise not less than 33.3% of
the votes to be cast on the business to be transacted by the meeting.
62. If within thirty (30) minutes (or such longer time not exceeding one hour as the chairman of
the meeting may determine to wait) after the time appointed for the meeting a quorum is not
present, the meeting shall stand adjourned to the same day in the next week at the same time and
place or to such time and place as the Board may determine. If at such adjourned meeting a quorum
is not present within half an hour from the time appointed for holding the meeting, the meeting
shall be dissolved.
63. The chairman of the Board shall preside as chairman at every Members’ meeting. If at any
meeting the chairman is not present within fifteen (15) minutes after the time appointed for
holding the meeting, or is not willing to act as chairman, the Directors present shall choose one
of their number to act, or if one Director only is present he shall preside as chairman if willing
to act. If no Director is present, or if each of the Directors present declines to take the chair,
or if the chairman chosen shall retire from the chair, the Members present in person or by proxy
and entitled to vote shall elect one of their number to be chairman.
64. The chairman may adjourn the meeting from time to time and from place to place, but no business
shall be transacted at any adjourned meeting other than the business which might lawfully have been
transacted at the meeting had the adjournment not taken place. When a meeting is adjourned for
fourteen (14) days or more, at least seven (7) clear days’ notice of the adjourned meeting shall be
given specifying the time and place of the adjourned meeting but it shall not be necessary to
specify in such notice the nature of the business to be transacted at the adjourned meeting and the
general nature of the business to be transacted. Save as aforesaid, it shall be unnecessary to
give notice of an adjournment.
65. If an amendment is proposed to any resolution under consideration but is in good faith ruled
out of order by the chairman of the meeting, the proceedings on the substantive resolution shall
not be invalidated by any error in such ruling. In the case of a resolution duly proposed as a
special resolution, no amendment thereto (other than a mere clerical amendment to correct a patent
error) may in any event be considered or voted upon.
66. Subject to any special rights or restrictions as to voting for the time being attached to any
shares or any class of shares by or in accordance with this Constitution, at any Members’ meeting
on a show of hands every Member present in person (or being a corporation, is present by a duly
authorised representative) or by proxy shall have one vote and on a poll, every Member present in
person or by proxy or, in the case of a Member being a corporation, by its duly authorised
representative shall have one vote for every fully paid share of which he is the holder but so that
no amount paid up or credited as paid up on a share in advance of calls or instalments is treated
for the foregoing purposes as paid up on the share. Notwithstanding anything contained in this
Constitution, where more than one proxy is appointed by a Member which is a clearing house or a
central depository house (or its nominee(s)), each such proxy shall have one vote on a show of
hands. A resolution put to the vote of a meeting shall be decided on a show of hands unless voting
by way of a poll is required by the rules of the Designated Stock Exchange or (before or on the
declaration of the result of the show of hands or on the withdrawal of any other demand for a poll)
a poll is demanded:
(a)
by the chairman of such meeting; or
(b)
by not less than five Members present in person or (in the case of a Member
being a corporation) by its duly authorised representative or by proxy for the time
being entitled to vote at the meeting; or
(c)
by a Member or Members present in person or (in the case of a Member being a
corporation) by its duly authorised representative or by proxy and representing not
less than ten per cent. (10%) of the total voting rights of all Members having the
right to vote at the meeting; or
(d)
by a Member or Members present in person or (in the case of a Member being a
corporation) by its duly authorised representative or by proxy and holding shares in
the Company that confer a right to vote at the meeting and on which the aggregate
amount paid up is not less than ten per cent. (10%) of the total amount paid up on all shares conferring that right.
A demand by a person as proxy for a Member or in the case of a Member being a corporation by its
duly authorised representative shall be deemed to be the same as a demand by a Member.
67. Unless a poll is duly demanded and the demand is not withdrawn, a declaration by the chairman
that a resolution has been carried, or carried unanimously, or by a particular majority, or not
carried by a particular majority, or lost, and an entry to that effect made in the minute book of
the Company, shall be conclusive evidence of the facts without proof of the number or proportion of
the votes recorded for or against the resolution.
68. If a poll is duly demanded the result of the poll shall be deemed to be the resolution of the
meeting at which the poll was demanded. There shall be no requirement for the chairman to disclose
the voting figures on a poll.
69. A poll demanded on the election of a chairman, or on a question of adjournment, shall be
taken forthwith. A poll demanded on any other question shall be taken in such manner (including
the use of ballot or voting papers or tickets) and either forthwith or at such time (being not
later than thirty (30) days after the date of the demand) and place as the chairman directs. It shall not be necessary (unless the chairman otherwise directs) for notice
to be given of a poll not taken immediately.
70. The demand for a poll shall not prevent the continuance of a meeting or the transaction of any
business other than the question on which the poll has been demanded, and, with the consent of the
chairman, it may be withdrawn at any time before the close of the meeting or the taking of the
poll, whichever is the earlier.
71. On a poll votes may be given either personally or by proxy.
72. A person entitled to more than one vote on a poll need not use all his votes or cast all the
votes he uses in the same way.
73. All questions submitted to a meeting shall be decided by a simple majority of votes except
where a greater majority is required by this Constitution or by the Law. In the case of an equality
of votes, whether on a show of hands or on a poll, the chairman of such meeting shall be entitled
to a second or casting vote in addition to any other vote he may have.
74. Where there are joint holders of any share any one of such joint holder may vote, either in
person or by proxy, in respect of such share as if he were solely entitled thereto, but if more
than one of such joint holders be present at any meeting the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint
holders, and for this purpose seniority shall be determined by the order in which the names stand
in the Register in respect of the joint holding. Several executors or administrators of a deceased
Member in whose name any share stands shall for the purposes of this Clause be deemed joint holders
thereof.
75. (1) A Member who is a patient for any purpose relating to mental health or in respect of whom
an order has been made by any court having jurisdiction for the protection or management of the
affairs of persons incapable of managing their own affairs may vote, whether on a show of hands or
on a poll, by his receiver, committee, curator bonis or other person in the nature of a receiver,
committee or curator bonis appointed by such court, and such receiver, committee, curator bonis or
other person may vote on a poll by proxy, and may otherwise act and be treated as if he were the
registered holder of such shares for the purposes of Members’ meetings, provided that such evidence
as the Board may require of the authority of the person claiming to vote shall have been deposited
at the Office, head office or Registration Office, as appropriate, not less than forty-eight (48)
hours before the time appointed for holding the meeting, or adjourned meeting or poll, as the case
may be.
(2) Any person entitled under Clause 53 to be registered as the holder of any shares may vote
at any Members’ meeting in respect thereof in the same manner as if he were the registered holder
of such shares, provided that forty-eight (48) hours at least before the time of the holding of the meeting or adjourned meeting, as the case may be, at which he proposes to vote,
he shall satisfy the Board of his entitlement to such shares, or the Board shall have previously
admitted his right to vote at such meeting in respect thereof.
76. No Member shall, unless the Board otherwise determines, be entitled to attend and vote and to
be reckoned in a quorum at any Members’ meeting unless he is duly registered and all calls or other
sums presently payable by him in respect of shares in the Company have been paid.
77. If:
(a)
any objection shall be raised to the qualification of any voter; or
(b)
any votes have been counted which ought not to have been counted or which might
have been rejected; or
(c)
any votes are not counted which ought to have been counted;
the objection or error shall not vitiate the decision of the meeting or adjourned meeting on
any resolution unless the same is raised or pointed out at the meeting or, as the case may be, the
adjourned meeting at which the vote objected to is given or tendered or at which the error occurs.
Any objection or error shall be referred to the chairman of the meeting and shall only vitiate the
decision of the meeting on any resolution if the chairman decides that the same may have affected
the decision of the meeting. The decision of the chairman on such matters shall be final and
conclusive.
PROXIES AND POSTAL VOTES
78. Any Member entitled to attend and vote at a meeting of the Company shall be entitled to appoint
another person as his proxy to attend and vote instead of him. A Member who is the holder of two
or more shares may appoint more than one proxy to represent him and vote on his behalf at a
Members’ meeting of the Company or at a class meeting, provided that the number of proxies to be
appointed by a Member shall not exceed the number of shares held by such Member. A proxy need not
be a Member. In addition, a proxy or proxies representing either a Member who is an individual or
a Member which is a corporation shall be entitled to exercise the same powers on behalf of the
Member which he or they represent as such Member could exercise.
79. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his
attorney duly authorised in writing or, if the appointor is a corporation, either under its seal or
under the hand of an officer, attorney or other person authorised to sign the same. In the case of
an instrument of proxy purporting to be signed on behalf of a corporation by an officer thereof it
shall be assumed, unless the contrary appears, that such officer was duly authorised to sign such
instrument of proxy on behalf of the corporation without further evidence of the facts. The
instrument appointing a proxy shall state whether the appointment is for a particular meeting or a
specified term.
80. The instrument appointing a proxy and (if required by the Board) the power of attorney
or other authority (if any) under which it is signed, or a certified copy of such power or
authority, shall be delivered to such place or one of such places (if any) as may be specified for
that purpose in or by way of note to or in any document accompanying the notice convening the
meeting (or, if no place is so specified at the Registration Office or the Office, as may be
appropriate) not less than twenty-four (24) hours before the time appointed for holding the
meeting or adjourned meeting at which the person named in the instrument proposes to vote or, in the case
of a poll taken subsequently to the date of a meeting or adjourned meeting, not less than
twenty-four (24) hours before the time appointed for the taking of the poll and in default the
instrument of proxy shall not be treated as valid. No instrument appointing a proxy shall be valid
after the expiration of twelve (12) months from the date named in it as the date of its execution,
except at an adjourned meeting or on a poll demanded at a meeting or an adjourned meeting in cases
where the meeting was originally held within twelve (12) months from such date. Delivery of an
instrument appointing a proxy shall not preclude a Member from attending and voting in person at the meeting convened and in such
event, the instrument appointing a proxy shall be deemed to be revoked.
81. Instruments of proxy shall be in any common form or in such other form as the Board may approve
and the Board may, if it thinks fit, send out with the notice of any meeting forms of instrument of
proxy for use at the meeting. The instrument of proxy shall be deemed to confer authority to
demand or join in demanding a poll and to vote on any amendment of a resolution put to the meeting
for which it is given as the proxy thinks fit. The instrument of proxy shall, unless the contrary
is stated therein, be valid as well for any adjournment of the meeting as for the meeting to which
it relates.
82. A vote given in accordance with the terms of an instrument of proxy shall be valid
notwithstanding the previous death or insanity of the principal, or revocation of the instrument of
proxy or of the authority under which it was executed, provided that no intimation in writing of
such death, insanity or revocation shall have been received by the Company at the Office or the
Registration Office (or such other place as may be specified for the delivery of instruments of
proxy in the notice convening the meeting or other document sent therewith) two hours at least
before the commencement of the meeting or adjourned meeting, or the taking of the poll, at which
the instrument of proxy is used.
83. Anything which under this Constitution a Member may do by proxy he may likewise do by his duly
appointed attorney and the provisions of this Constitution relating to proxies and instruments
appointing proxies shall apply mutatis mutandis in relation to any such attorney and the instrument
under which such attorney is appointed.
83A. (1) A Member may exercise the right to vote at a meeting by casting a postal vote in
accordance with this Clause.
(2) The notice of a meeting at which Members are entitled to cast a postal vote shall state
the name of the person authorised by the Board to receive and count postal votes at that meeting.
(3) Where no person has been authorised to receive and count postal votes at a meeting, or
where no person is named as being so authorised in the notice of the meeting, every Director shall
be deemed to be so authorised.
(4)
(i)
A Member may cast a postal vote on all or any of the matters to be voted on
at the meeting by sending a notice in the manner in which his shares are to be voted to
a person authorised to receive and count postal votes at that meeting.
(ii)
The notice shall reach that person not less than 48 hours
before the start
(5) A person authorised to receive and count postal votes at a meeting shall –
(i)
collect together all postal votes received by him or by the
Company;
(ii)
in relation to each resolution to be voted on at the meeting, count –
(a)
the number of Members voting in favour of the
resolution and the number of votes cast by each Member in favour of the
resolution; and
(b)
the number of Members voting against the
resolution, and the number of votes cast by each Member against the
resolution;
(iii)
sign a certificate that he has carried out the duties set out
in subparagraphs (i) and (ii) which sets out the results of the counts required
by subparagraph (ii); and
(iv)
ensure that the certificate required by subparagraph (iii) is
presented to the chairperson of the meeting.
(6) Where a vote is taken at a meeting on a resolution on which postal votes have been cast,
the chairperson of the meeting shall –
(i)
on a vote by show of hands, count each Member who has submitted
a postal vote for or against the resolution;
(ii)
on a poll, count the votes cast by each Member who has
submitted a postal vote for or against the resolution.
(7) The chairperson of a meeting shall call for a poll on a resolution on which he holds
sufficient postal votes that he believes that, where a poll is taken, the result may differ from
that obtained on a show of hands.
(8) The chairperson of a meeting shall ensure that a certificate of postal votes held by him
is annexed to the minutes of the meeting.
CORPORATIONS ACTING BY REPRESENTATIVES
84. (1) Any corporation which is a Member 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 at any meeting of any class of Members. The person so authorised shall be entitled to
exercise the same powers on behalf of such corporation as the corporation could exercise if it were
an individual Member and such corporation shall for the purposes of this Constitution be deemed to
be present in person at any such meeting if a person so authorised is present thereat.
(2) If a clearing house (or its nominee(s)) or a central depository entity, being a
corporation, is a Member, it may authorise such persons as it thinks fit to act as its
representatives at any meeting of the Company or at any meeting of any class of Members provided
that the authorisation shall specify the number and class of shares in respect of which each such
representative is so authorised. Each person so authorised under the provisions of this Clause
shall be deemed to have been duly authorised without further evidence of the facts and be entitled
to exercise the same rights and powers on behalf of the clearing house or central depository entity
(or its nominee(s)) as if such person was the registered holder of the shares of the Company held
by the clearing house or a central depository entity (or its nominee(s)) including the right to
vote individually on a show of hands.
(3) Any reference in this Constitution to a duly authorised representative of a Member being a
corporation shall mean a representative authorised under the provisions of this Clause.
WRITTEN RESOLUTIONS OF MEMBERS
85. (1) Subject to the Act and the provisions of this Constitution, a resolution in writing signed
(in such manner as to indicate, expressly or impliedly, unconditional approval) by or on behalf of
not less than 75 per cent. (75%) of the persons for the time being entitled to receive notice of
and to attend and vote at Members’ meetings of the Company and who together hold not less than 75
per cent. (75%) of the votes entitled to be cast on that resolution shall, for the purposes of this
Constitution, be treated as a resolution duly passed at a special meeting of the Company. Any such
resolution shall be deemed to have been passed at a meeting held on the date on which it was signed
by the last Member to sign, and where the resolution states a date as being the date of his
signature thereof by any Member the statement shall be prima facie evidence that it was signed by
him on that date. Such a resolution may consist of several documents in the like form, each signed
by one or more relevant Members.
(2) Any power which the Act or this Constitution requires to be exercised by an ordinary
resolution or a special resolution may be exercised by way of unanimous resolution.
(3) A resolution in writing may be signed in any number of counterparts and without any prior
notice being given to the Members.
(4) Within 7 days of a resolution being passed in writing, the Company shall send a copy of
the resolution to every Member who did not sign the resolution or on whose behalf the resolution
was not signed.
(5) A resolution in writing made in accordance with this Constitution shall constitute minutes
for the purposes of the Act.
(6) Notwithstanding any provisions contained in this Constitution, a resolution in writing may
not be passed by the Members in lieu of an annual meeting of the Company or for the purpose of
removing a Director before the expiration of his term of office under Clause 86(5) or for the
purpose set out in Clause 155(2) relating to the removal and appointment of the Auditor.
86. (1) Unless otherwise determined by the Company by ordinary resolution of the Members, the
number of Directors shall not be less than two (2). There shall be no maximum number of Directors
unless otherwise determined from time to time by ordinary resolution of the Members. For so long as
the Company holds a Category 1 Global Business Licence issued by the Financial Services Commission,
the Company shall have at least 2 directors resident in Mauritius or such number of directors
resident in Mauritius as may be necessary or required under the Law.
(2) Subject to the provisions of this Constitution and the Law, the Company may by ordinary
resolution elect any person to be a Director either to fill a casual vacancy or as an addition to
the existing Board.
(3) The Directors shall have the power from time to time and at any time to appoint any
person as a Director to fill a casual vacancy on the Board or as an addition to the existing Board.
Any Director so appointed by the Board shall hold office only until the next following annual
meeting of the Company and shall then be eligible for re-election.
(4) No Director shall be required to hold any shares of the Company by way of qualification
and a Director who is not a Member shall be entitled to receive notice of and to attend and speak
at any Members’ meeting of the Company and of all classes of shares of the Company.
(5) A Director may be removed by way of an ordinary resolution of the Members at any time
before the expiration of his period of office notwithstanding anything in this Constitution or in
any agreement between the Company and such Director (but without prejudice to any claim for damages
under any such agreement). The notice of meeting shall state that the purpose of the meeting
includes the removal of such Director.
(6) A vacancy on the Board created by the removal of a Director under the provisions of
subparagraph (5) above may be filled by the election or appointment by ordinary resolution of the
Members at the meeting at which such Director is removed or by the affirmative vote of a simple
majority of the remaining Directors present and voting at a Board meeting.
(7) The Company may from time to time by ordinary resolution increase or reduce the number of
Directors but so that the number of Directors shall never be less than two (2).
RETIREMENT OF DIRECTORS
87. (1) Notwithstanding any other provisions in this Constitution and subject to Clause 88(1), at
each annual meeting of the Company one-third of the Directors for the time being (or, if their
number is not a multiple of three (3), the number nearest to but not greater than one-third) shall
retire from office by rotation provided that notwithstanding anything herein, the chairman of the
Board and/or the managing director of the Company shall not, whilst holding such office, be subject
to retirement by rotation or be taken into account in determining the number of Directors to retire
in each year.
(2) A retiring Director shall be eligible for re-election. The Directors to retire by
rotation shall include (so far as necessary to ascertain the number of directors to retire by
rotation) any Director who wishes to retire and not to offer himself for re-election. Any further
Directors so to retire shall be those of the other Directors subject to retirement by
rotation who have been longest in office since their last re-election or appointment and so
that as between persons who became or were last re-elected Directors on the same day, those to
retire shall (unless they otherwise agree among themselves) be determined by lot. Any Director
appointed pursuant to Clause 86(3) shall be taken into account in determining which particular
Directors or the number of Directors who are to retire by rotation.
88. (1) A Director shall vacate his office as director of the Company at the conclusion of
the annual meeting of the Company commencing next after the Director attains the age of 70 years.
Such Director may, by an ordinary resolution of which no shorter notice is given than that required
to be given for the holding of a meeting of Members, be appointed or re-appointed as a Director of
the Company to hold office until the next annual meeting of the Company or be authorised to
continue to hold office as a Director until the next annual meeting of the Company. The provisions
of Clause 87 shall not apply to such Director.
(2) Subject to the Clause 88(1), no person other than a Director retiring at the meeting
shall, unless recommended by the Directors for election, be eligible for election as a Director at
any Members’ meeting unless a Notice signed by a Member (other than the person to be proposed) duly
qualified to attend and vote at the meeting for which such notice is given of his intention to
propose such person for election and also a Notice signed by the person to be proposed of his
willingness to be elected shall have been lodged at the head office or at the Registration Office
provided that the minimum length of the period, during which such Notice(s) are given, shall be at
least seven (7) days and that the period for lodgment of such Notice(s) shall commence no earlier
than the day after the dispatch of the notice of the Members’ meeting appointed for such election
and end no later than seven (7) days prior to the date of such Members’ meeting.
DISQUALIFICATION OF DIRECTORS
89. The office of a Director shall be vacated if the Director:
(1) resigns his office by notice in writing delivered to the Company at the Office or tendered
at a meeting of the Board;
(2) becomes of unsound mind or dies;
(3) becomes bankrupt or has a receiving order made against him or suspends payment or
compounds with his creditors;
(4) becomes disqualified from being a Director under the Act or is prohibited by law from
being a Director;
(5) is removed from office by ordinary resolution of the Members or is removed from office
pursuant to the provisions of this Constitution; or
(6) ceases to hold office pursuant to Section 139 of the Act or ceases to be a Director by
virtue of any provision of the Statutes.
EXECUTIVE DIRECTORS
90. The Board may from time to time appoint any one or more of its body to be a managing director,
joint managing director or deputy managing director or to hold any other
employment or executive office with the Company for such period (subject to their continuance as
Directors) and upon such terms as the Board may determine and the Board may revoke or terminate any
of such appointments. Any such revocation or termination as aforesaid shall be without prejudice
to any claim for damages that such Director may have against the Company or the Company may have
against such Director. A Director appointed to an office under this Clause shall be subject to the
same provisions as to removal as the other Directors of the Company, and he shall (subject to the
provisions of any contract between him and the Company) ipso facto and immediately cease to hold
such office if he shall cease to hold the office of Director for any cause.
91. Notwithstanding Clauses 96, 97, 98 and 99, an executive director appointed to an office under
Clause 90 hereof shall receive such remuneration (whether by way of salary, commission,
participation in profits or otherwise or by all or any of those modes) and such other benefits
(including pension and/or gratuity and/or other benefits on retirement) and allowances as the Board
may from time to time determine, and either in addition to or in lieu of his remuneration as a
Director.
ALTERNATE DIRECTORS
92. Any Director may at any time by Notice delivered to the Office or head office or at a meeting
of the Directors appoint any person (including another Director) to be his alternate Director. Any
person so appointed shall have all the rights and powers of the Director or Directors for whom such
person is appointed in the alternative provided that such person shall not be counted more than
once in determining whether or not a quorum is present. An alternate Director may be removed at
any time by the body which appointed him and, subject thereto, the office of alternate Director
shall continue until the happening of any event which, if he were a Director, would cause him to
vacate such office or if his appointor ceases for any reason to be a Director. Any appointment or
removal of an alternate Director shall be effected by Notice signed by the appointor and delivered
to the Office or head office or tendered at a meeting of the Board. An alternate Director may also
be a Director in his own right and may act as alternate to more than one Director. An alternate
Director shall, if his appointor so requests, be entitled to receive notices of meetings of the
Board or of committees of the Board to the same extent as, but in lieu of, the Director appointing
him and shall be entitled to such extent 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
exercise and discharge all the functions, powers and duties of his appointor as a Director and for
the purposes of the proceedings at such meeting the provisions of these Clauses shall apply as if
he were a Director save that as an alternate for more than one Director his voting rights shall be
cumulative.
93. An alternate Director shall only be a Director for the purposes of the Law and shall only be
subject to the provisions of the Law insofar as they relate to the duties and
obligations of a
Director when performing the functions of the Director for whom he is appointed in the alternative
and shall alone be responsible to the Company for his acts and defaults and shall not be deemed to
be the agent of or for the Director appointing him. An alternate Director shall be entitled to
contract and be interested in and benefit from contracts or arrangements or transactions and to be
repaid expenses and to be indemnified by the Company to the same extent mutatis mutandis as if he
were a Director but he shall not be entitled to receive from the Company any fee in his capacity as
an alternate Director except only such part, if any, of the remuneration otherwise payable to his
appointor as such appointor may by Notice to the Company from time to time direct.
94. Every person acting as an alternate Director shall have one vote for each Director for whom he
acts as alternate (in addition to his own vote if he is also a
Director). If the appointor of an alternate Director is for the time being absent from his usual
place of residence or otherwise not available or unable to act, the signature of an alternate
Director to any resolution in writing of the Board or a committee of the Board of which his
appointor is a member shall, unless the notice of his appointment provides to the contrary, be as
effective as the signature of his appointor.
95. An alternate Director shall ipso facto cease to be an alternate Director if his appointor
ceases for any reason to be a Director, PROVIDED always that, if at any meeting any Director
retires but is re-elected at the same meeting, any appointment of an alternate Director to such
retiring Director pursuant to this Constitution which was in force immediately before such retiring
Director’s retirement shall remain in force as though he had not retired.
DIRECTORS’ FEES AND EXPENSES
96. The Directors shall receive such remuneration as the Board may from time to time determine.
97. Each Director shall be entitled to be repaid or prepaid all traveling, hotel and incidental
expenses reasonably incurred or expected to be incurred by him in attending meetings of the Board
or committees of the board or Members’ meetings or separate meetings of any class of shares or of
debenture of the Company or otherwise in connection with the discharge of his duties as a Director.
98. Any Director who, by request, goes or resides abroad for any purpose of the Company or who
performs services which in the opinion of the Board go beyond the ordinary duties of a Director may
be paid such extra remuneration (whether by way of salary, commission, participation in profits or
otherwise) as the Board may determine and such extra
remuneration shall be in addition to or in substitution for any ordinary remuneration provided for
by or pursuant to any other provision of this Constitution.
99. The Board shall obtain the approval of the Company in Members’ meeting before making any
payment to any Director or past Director of the Company by way of compensation for loss of office,
or as consideration for or in connection with his retirement from office (not being payment to
which the Director is contractually entitled).
hold any other office or place of profit with the Company (except that of
Auditor) in conjunction with his office of Director for such period and upon such
terms as the Board may determine. Any remuneration (whether by way of salary,
commission, participation in profits or otherwise) paid to any Director in respect of
any such other office or place of profit shall be in addition to any remuneration
provided for by or pursuant to any other provision of this Constitution;
(b)
act by himself or his firm in a professional capacity for the Company
(otherwise than as Auditor) and he or his firm may be remunerated for professional
services as if he were not a Director;
(c)
continue to be or become a director, managing director, joint managing
director, deputy managing director, executive director, manager or other officer or
member of any other company promoted by the Company or in which the Company may be
interested as a vendor, shareholder or otherwise and (unless otherwise agreed) no such
Director shall be accountable for any remuneration, profits or other benefits received
by him as a director, managing director, joint managing director, deputy managing
director, executive director, manager or other officer or member of or from his
interests in any such other company. Subject as otherwise provided by this
Constitution, the Directors may exercise or cause to be exercised the voting powers
conferred by the shares in any other company held or owned by the Company, or
exercisable by them as Directors of such other company in such manner in all respects
as they think fit (including the exercise thereof in favour of any resolution
appointing themselves or any of them as directors, managing directors, joint managing
directors, deputy managing directors, executive directors, managers or other officers
of such company or voting or providing for the payment of remuneration to the
director, managing director, joint managing director, deputy managing director,
executive director, manager or other officers of such other company) and any Director
may vote in favour of the exercise of such voting rights in manner aforesaid
notwithstanding that he may be, or about to be, appointed a director, managing
director, joint managing director, deputy managing director, executive director,
manager or other officer of such a company, and that as such he is or may become
interested in the exercise of such voting rights in manner aforesaid.
101. Subject to the Law and to this Constitution, no Director or proposed or intending Director
shall be disqualified by his office from contracting with the Company, either with regard to his
tenure of any office or place of profit or as vendor, purchaser or
in any other manner whatever, nor shall any such contract or any other contract or arrangement in
which any Director is in any way interested be liable to be avoided, nor shall any Director so
contracting or being so interested be liable to account to the Company or the Members for any
remuneration, profit or other benefits realised by any such contract or arrangement by reason of
such Director holding that office or of the fiduciary relationship thereby established provided
that such Director shall disclose the nature of his interest in any contract or arrangement in
which he is interested in accordance with Clause 102 herein.
102. To the full extent required by the Law, a Director shall, forthwith after becoming aware of
the fact that he is interested in a transaction or proposed transaction with the Company, cause to
be entered in the interests register of the Company where it has one, and disclose to the Board,
the nature and monetary value of that interest or where the monetary value of the Director’s
interest cannot be quantified, the nature and extent of that interest. A general notice entered in
the interests register or disclosed to the Board to the effect that a Director is a shareholder,
director, officer or trustee of another named company or other person 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 company or person, shall be a sufficient disclosure of interest in relation to that
transaction.
103. A Director shall not vote in respect of any contract or arrangement or proposed contract or
arrangement in which such Director has any interest, directly or indirectly, and if he does vote,
his vote shall not be counted. Such Director may, however, attend a meeting of Directors at which a
matter relating to the transaction arises and be included among the Directors present at the
meeting for the purpose of a quorum at such meeting.
GENERAL POWERS OF THE DIRECTORS
104. (1) The business of the Company shall be managed and conducted by the Board, which may
exercise all powers of the Company (whether relating to the management of the business of the
Company or otherwise) which are not by the Statutes or by this Constitution required to be
exercised by the Company in Members’ meeting, subject nevertheless to the provisions of the
Statutes and of this Constitution and to such regulations being not inconsistent with such
provisions, as may be prescribed by the Company in Members’ meeting, but no regulations made by the
Company in Members’ meeting shall invalidate any prior act of the Board which would have been valid
if such regulations had not been made. The general powers given by this Clause shall not be
limited or restricted by any special authority or power given to the Board by any other provision
of this Constitution.
(2) Any person contracting or dealing with the Company in the ordinary course of business
shall be entitled to rely on any written or oral contract or agreement or deed, document or
instrument entered into or executed as the case may be by any two of the Directors acting jointly
on behalf of the Company and the same shall be deemed to be validly entered into or executed by the
Company as the case may be and shall, subject to any rule of law, be binding on the Company.
(3) Without prejudice to the general powers conferred by this Constitution, it is hereby
expressly declared that the Board shall have the following powers:
(a)
To give to any person the right or option of requiring at a future date that an
allotment shall be made to him of any share at par or at such premium as may be agreed.
(b)
To give to any Directors, officers or employees of the Company an interest in
any particular business or transaction or participation in the profits thereof or in
the general profits of the Company either in addition to or in substitution for a
salary or other remuneration.
105. The Board may establish any regional or local boards or agencies for managing any of the
affairs of the Company in any place, and may appoint any persons to be members of such local
boards, or any managers or agents, and may fix their remuneration (either by way of salary or by
commission or by conferring the right to participation in the profits of the Company or by a
combination of two or more of these modes) and pay the working expenses of any staff employed by
them upon the business of the Company. Subject to the Act and to the extent permitted by law, the
Board may delegate to any manager, officer (including any officer of any subsidiary of the Company)
or agent or any regional or local board or agency any of the powers, authorities and discretions
vested in or exercisable by the Board (other than its powers to make calls and forfeit shares),
with power to sub-delegate, and may authorise the members of any of them to fill any vacancies
therein and to act notwithstanding vacancies. Any such appointment or delegation may be made upon
such terms and subject to such conditions as the Board may think fit, and the Board may remove any
person appointed as aforesaid, and may revoke or vary such delegation, but no person dealing in
good faith and without notice of any such revocation or variation shall be affected thereby.
106. The Board may by power of attorney appoint any company, firm or person or any fluctuating body
of persons, whether nominated directly or indirectly by the Board, to be the attorney or attorneys
of the Company for such purposes and with such powers, authorities and discretions (not exceeding
those vested in or exercisable by the Board under this Constitution) and for such period and
subject to such conditions as it may think fit, and any such power of attorney may contain such
provisions for the protection and convenience of persons dealing with any such attorney as the
Board may think fit, and may also authorise any such attorney to sub-delegate all or any of the
powers, authorities and discretions vested in him. Such attorney or attorneys may, if so authorised
under the Seal of the Company, execute any deed or instrument under their personal seal with the
same effect as the affixation of the Company’s Seal.
107. Subject to the Act, the Board may entrust to and confer upon a managing director, joint
managing director, deputy managing director, an executive director or any Director any of the
powers exercisable by it upon such terms and conditions and with such restrictions as it thinks
fit, and either collaterally with, or to the exclusion of, its own powers, and may from time to
time revoke or vary all or any of such powers but no person dealing in good faith and without
notice of such revocation or variation shall be affected thereby.
108. All cheques, promissory notes, drafts, bills of exchange and other instruments, whether
negotiable or transferable or not, and all receipts for moneys paid to the Company shall be signed,
drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as the Board
shall from time to time by resolution determine. The Company’s banking accounts shall be kept with
such banker or bankers as the Board shall from time to time determine.
109. (1) The Board may establish or concur or join with other companies (being subsidiary companies
of the Company or companies with which it is associated in business) in establishing and making
contributions out of the Company’s moneys to any schemes or funds for providing pensions, sickness
or compassionate allowances, life assurance or other benefits for employees (which expression as
used in this and the following paragraph shall include any
Director or ex-Director who may hold or
have held any executive office or any office of profit under the Company or any of its subsidiary
companies) and ex-employees of the Company and their dependants or any class or classes of such
person.
(2) The Board may pay, enter into agreements to pay or make grants of revocable or irrevocable
pensions or other benefits to employees and ex-employees and their dependants, or to any of such
persons, including pensions or benefits additional to those, if any, to which such employees or
ex-employees or their dependants are or may become entitled under any such scheme or fund as
mentioned in the last preceding paragraph. Any such pension or benefit may, as the Board considers
desirable, be granted to an employee either before and in anticipation of or upon or at any time
after his actual retirement, and may be subject or not subject to any terms or conditions as the
Board may determine.
BORROWING POWERS
110. The Board may exercise all the powers of the Company to raise or borrow money and to mortgage
or charge all or any part of the undertaking, property and assets (present and future) and uncalled
capital of the Company and, subject to the Law, to issue debentures, bonds and other securities,
whether outright or as collateral security for any debt, liability or obligation of the Company or
of any third party.
111. Any debentures, bonds or other securities may be issued at a discount (other than shares),
premium or otherwise and with any special privileges as to redemption, surrender, drawings,
allotment of shares, attending and voting at Members’ meetings of the Company, appointment of
Directors and otherwise.
112. Where any uncalled capital of the Company is charged, all persons taking any subsequent charge
thereon shall take the same subject to such prior charge, and shall not be entitled, by notice to
the Members or otherwise, to obtain priority over such prior charge.
113. The Board shall cause a proper register to be kept, in accordance with the provisions
of the Law, of all charges specifically affecting the property of the Company and of any series of
debentures issued by the Company and shall duly comply with the requirements of the Law in regard
to the registration of charges and debentures therein specified and otherwise.
PROCEEDINGS OF THE DIRECTORS
114. The Board may meet for the despatch of business, adjourn and otherwise regulate its meetings
as it considers appropriate. Questions arising at any meeting shall be determined by a majority of
votes. In the case of any equality of votes the chairman of the meeting shall have an additional
or casting vote.
115. A meeting of the Board may be convened by the Secretary on request of a Director or by any
Director. The Secretary shall convene a meeting of the Board of which notice may be given in
writing whenever he shall be required so to do by the president or chairman, as the case may be, or
any Director. The notice shall include the date, time, and place of the meeting and the matters to
be discussed at the meeting.
116. (1) The quorum necessary for the transaction of the business of the Board may be fixed by the
Board and, unless so fixed at any other number, shall be three (3), Provided That for so long as
the Company holds a Category 1 Global Business Licence issued by the Financial Services Commission
of Mauritius, the quorum shall include at least two (2) directors from Mauritius or such number of
directors from Mauritius as may be necessary or required under the Law. An alternate Director shall
be counted in a quorum in the case of the
absence of a Director for whom he is the alternate provided that he shall not be counted more than
once for the purpose of determining whether or not a quorum is present.
(2) Directors may participate in any meeting of the Board by means of a conference telephone
or other communications equipment through which all persons participating in the meeting can
communicate with each other simultaneously and instantaneously and, for the purpose of counting a
quorum, such participation shall constitute presence at a meeting as if those participating were
present in person.
(3) Any Director who ceases to be a Director at a Board meeting may continue to be present and
to act as a Director and be counted in the quorum until the termination of such Board meeting if no
other Director objects and if otherwise a quorum of Directors would not be present.
117. The continuing Directors or a sole continuing Director may act notwithstanding any vacancy in
the Board but, if and so long as the number of Directors is reduced below the minimum number fixed
by or in accordance with this Constitution, the continuing Directors or Director, notwithstanding
that the number of Directors is below the number fixed by or in accordance with this Constitution
as the quorum or that there is only one continuing Director, may act for the purpose of filling
vacancies in the Board or of summoning Members’ meetings of the Company but not for any other
purpose.
118. The Chairman of the Board shall be the chairman of all meetings of the Board. If the
Chairman of the Board is not present at any meeting within fifteen (15) minutes after the time
appointed for holding the same, the Directors present may choose one of their number to be chairman
of the meeting.
119. A meeting of the Board at which a quorum is present shall be competent to exercise all the
powers, authorities and discretions for the time being vested in or exercisable by the Board.
120. (1) Subject to the Act and to the extent permitted by law, the Board may delegate any of its
powers, authorities and discretions to committees (including, without limitation, the Audit
Committee), consisting of such Director or Directors and other persons as it thinks fit, and they
may, from time to time, revoke such delegation or revoke the appointment of and discharge any such
committees either wholly or in part, and either as to persons or purposes. Any committee so formed
shall, in the exercise of the powers, authorities and discretions so delegated, conform to any
regulations which may be imposed on it by the Board.
(2) All acts done by any such committee in conformity with such regulations, and in fulfilment
of the purposes for which it was appointed, but not otherwise, shall have like force and effect as
if done by the Board, and the Board (or if the Board delegates such power, the
committee) shall
have power to remunerate the members of any such committee, and charge such remuneration to the
current expenses of the Company.
121. The meetings and proceedings of any committee consisting of two or more members shall be
governed by the provisions contained in this Constitution for regulating the meetings and
proceedings of the Board so far as the same are applicable and are not superseded by any
regulations imposed by the Board under the last preceding Clause, indicating, without limitation,
any committee charter adopted by the Board for purposes or in respect of any such committee.
122. A resolution in writing signed by all the Directors shall be as valid and effectual as if a
resolution had been passed at a meeting of the Board duly convened and held. Such resolution may
be contained in one document or in several documents in like form each signed by one or more of the
Directors and for this purpose a facsimile signature of a Director shall be treated as valid.
123. All acts bona fide done by the Board or by any committee or by any person acting as a
Director or members of a committee, shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of any member of the Board or such committee or person
acting as aforesaid or that they or any of them were disqualified or had vacated office, be as
valid as if every such person had been duly appointed and was qualified and had continued to be a
Director or member of such committee.
AUDIT COMMITTEE
124. Without prejudice to the freedom of the Directors to establish any other committees, for so
long as the shares of the Company (or depositary receipts therefor) are listed or quoted on the
Designated Stock Exchange, the Board shall establish and maintain an Audit Committee as a committee
of the Board, the composition and responsibilities of which shall comply with the rules and
regulations of the SEC.
125. (1) The Board shall adopt a formal written audit committee charter and review and assess the
adequacy of the formal written charter on an annual basis.
(2) The Audit Committee shall meet at least once every financial quarter, or more frequently
as circumstances dictate.
126. For so long as the shares of the Company (or depositary receipts therefor) are listed or
quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all
related party transactions on an ongoing basis and shall utilize the Audit Committee for the review
and approval of potential conflicts of interest.
OFFICERS
127. (1) The officers of the Company shall consist of the Chairman of the Board, the Directors and
Secretary and such additional officers (who may or may not be Directors) as the Board may from time
to time determine, all of whom shall be deemed to be officers for the purposes of the Law and this
Constitution.
(2) The Directors shall, as soon as may be after each appointment or election of Directors,
elect amongst the Directors a chairman and if more than one Director is proposed for this office,
the election to such office shall take place in such manner as the Directors may determine.
(3) The officers shall receive such remuneration as the Directors may from time to time
determine.
128. (1) The Secretary and additional officers, if any, shall be appointed by the Board and shall
hold office on such terms and for such period as the Board may determine. The Secretary shall be
ordinarily resident in Mauritius. If thought fit, two or more persons may be
appointed as joint Secretaries. The Board may also appoint from time to time on such terms as it
thinks fit one or more assistant or deputy Secretaries.
(2) The Secretary shall attend all meetings of the Members and shall keep correct minutes of
such meetings and enter the same in the proper books provided for the purpose. He shall perform
such other duties as are prescribed by the Law or this Constitution or as may be prescribed by the
Board.
129. The officers of the Company shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them by the Directors from
time to time.
130. A provision of the Law or of this Constitution requiring or authorising a thing to be done by
or to a Director and the Secretary shall not be satisfied by its being done by or to the same
person acting both as Director and as or in place of the Secretary.
REGISTER OF DIRECTORS AND OFFICERS
131. The Company shall cause to be kept in one or more books at its Office a Register of Directors
and Officers in which there shall be entered the full names and addresses of the Directors and
Officers and such other particulars as required by the Law or as the Directors may determine. The
Company shall from time to time notify to the said Registrar of any change that takes place in
relation to such Directors and Officers as required by the Law.
MINUTES
132. (1) The Board shall cause minutes to be duly entered in books provided for the purpose:
(a)
of all elections and appointments of officers;
(b)
of the names of the Directors present at each meeting of the Directors and of
any committee of the Directors;
of all resolutions and proceedings of each meeting of the Members, meetings of
the Board and meetings of committees of the Board and where there are managers, of all
proceedings of meetings of the managers.
(2) Minutes shall be kept by the Secretary at the Office.
SEAL
133. (1) The Company shall have one or more Seals, as the Board may determine. For the
purpose of sealing documents creating or evidencing securities issued by the Company, the Company
may have a securities seal which is a facsimile of the Seal of the Company with the addition of the
word “Securities” on its face or in such other form as the Board may approve. The Board shall
provide for the custody of each Seal and no Seal shall be used without the authority of the Board
or of a committee of the Board authorised by the Board in that behalf. Subject as otherwise
provided in this Constitution, any instrument to which a
Seal is affixed shall be signed autographically by one Director and the Secretary or by two
Directors or by such other person (including a Director) or persons as the Board may appoint,
either generally or in any particular case, save that as regards any certificates for shares or
debentures or other securities of the Company the Board may by resolution determine that such
signatures or either of them shall be dispensed with or affixed by some method or system of
mechanical signature. Every instrument executed in manner provided by this Clause shall be deemed
to be sealed and executed with the authority of the Board previously given.
(2) Where the Company has a Seal for use abroad, the Board may by writing under the Seal
appoint any agent or committee abroad to be the duly authorised agent of the Company for the
purpose of affixing and using such Seal and the Board may impose restrictions on the use thereof as
may be thought fit. Wherever in this Constitution reference is made to the Seal, the reference
shall, when and so far as may be applicable, be deemed to include any such other Seal as aforesaid.
AUTHENTICATION OF DOCUMENTS
134. Any Director or the Secretary or any person appointed by the Board for the purpose may
authenticate any documents affecting the constitution of the Company and any resolution passed by
the Company or the Board or any committee, and any books, records, documents and accounts relating
to the business of the Company, and to certify copies thereof or extracts therefrom as true copies
or extracts, and if any books, records, documents or accounts are elsewhere than at the Office or
the head office the local manager or other officer of the Company having the custody thereof shall
be deemed to be a person so appointed by the Board. A document purporting to be a copy of a
resolution, or an extract from the minutes of a meeting, of the Company or of the Board or any
committee which is so certified shall be conclusive evidence in favour of all persons dealing with
the Company upon the faith thereof that such resolution has been duly passed or, as the case may
be, that such minutes or extract is a true and accurate record of proceedings at a duly constituted
meeting.
135. (1) The Company shall be entitled to destroy the following documents at the following times:
(a)
any share certificate which has been cancelled at any time after the expiry of
one (1) year from the date of such cancellation;
(b)
any dividend mandate or any variation or cancellation thereof or any
notification of change of name or address at any time after the expiry of two (2) years
from the date such mandate variation cancellation or notification was recorded by the
Company;
(c)
any instrument of transfer of shares which has been registered at any time
after the expiry of seven (7) years from the date of registration;
(d)
any allotment letters after the expiry of seven (7) years from the date of issue
thereof; and
(e)
copies of powers of attorney, grants of probate and letters of administration
at any time after the expiry of seven (7) years after the account to which the relevant
power of attorney, grant of probate or letters of administration related has been
closed;
and it shall conclusively be presumed in favour of the Company that every entry in the
Register purporting to be made on the basis of any such documents so destroyed was duly and
properly made and every share certificate so destroyed was a valid certificate duly and properly
cancelled and that every instrument of transfer so destroyed was a valid and effective instrument
duly and properly registered and that every other document destroyed hereunder was a valid and
effective document in accordance with the recorded particulars thereof in the books or records of
the Company. Provided always that: (1) the foregoing provisions of this Clause shall apply only to
the destruction of a document in good faith and without express notice to the Company that the
preservation of such document was relevant to a claim; (2) nothing contained in this Clause shall
be construed as imposing upon the Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any case where the conditions of proviso (1) above are not
fulfilled; and (3) references in this Clause to the destruction of any document include references
to its disposal in any manner.
(2) Notwithstanding any provision contained in this Constitution, the Directors may, if
permitted by applicable law, authorise the destruction of documents set out in sub-paragraphs (a)
to (e) of paragraph (1) of this Clause and any other documents in relation to share registration
which have been microfilmed or electronically stored by the Company or by the share registrar on
its behalf provided always that this Clause shall apply only to the destruction of a document in
good faith and without express notice to the Company and its share registrar that the preservation
of such document was relevant to a claim.
136. Subject to the Law and the provisions of this Constitution, the Company may by ordinary
resolution or the Board may from time to time declare dividends in any currency to be paid to the
Members but no dividend shall be declared in excess of the amount recommended by the Board.
137. No distribution (which includes dividend) may be made by the Company unless that distribution
has been authorised by the Board and, save as otherwise provided in this Constitution (including,
without limitation, Clause 139), has been approved by the Members by ordinary resolution. Dividends
may only be declared and paid out of the retained earnings of the Company, after having made good
any accumulated losses at the beginning of the accounting period and no distribution (which
includes dividend) may be made unless the Board is satisfied that upon the distribution being made
(a) the Company is able to pay its debts as they become due in the normal course of business, and
(b) the value of the Company’s assets is greater than the sum of (i) the value of its liabilities
and (ii) the Company’s stated capital.
138. Except in so far as the rights attaching to, or the terms of issue of, any share otherwise
provide:
(a)
all dividends shall be declared and paid according to the amounts paid up on the
shares in respect of which the dividend is paid, but no amount paid up on a share in
advance of calls shall be treated for the purposes of this Clause as paid up on the
share; and
(b)
all dividends shall be apportioned and paid pro rata according to the amounts
paid up on the shares during any portion or portions of the period in respect of which
the dividend is paid.
139. The Board may from time to time pay to the Members such interim dividends as appear to the
Board to be justified by the profits of the Company and in particular (but without prejudice to the
generality of the foregoing) if at any time the share capital of the Company is divided into
different classes, the Board may pay such interim dividends in respect of those shares in the
capital of the Company which confer on the holders thereof deferred or non-preferential rights as
well as in respect of those shares which confer on the holders thereof preferential rights with
regard to dividend and provided that the Board acts bona fide, the Board shall not incur any
responsibility to the holders of shares conferring any preference for any damage that they may
suffer by reason of the payment of an interim dividend on any shares having deferred or
non-preferential rights and may also pay any fixed dividend which is payable on any shares of the
Company half-yearly or on any other dates, whenever such profits, in the opinion of the Board,
justifies such payment.
140. The Board may retain any dividend or other moneys payable on or in respect of a share on which
the Company has a lien and may apply the same in or towards satisfaction of the debts, liabilities
or engagements in respect of which the lien exists.
141. No dividend or other moneys payable by the Company on or in respect of any share shall bear
interest against the Company.
142. Any dividend, interest or other sum payable in cash to the holder of shares may be paid by
cheque or warrant sent through the post addressed to the holder at his registered address or, in
the case of joint holders, addressed to the holder whose name stands first in the Register in
respect of the shares at his address as appearing in the Register or addressed to such person and
at such address as the holder or joint holders may in writing direct or may be sent by remittance
or telegraphic transfer to the bank account of the holder at his bank account as may be notified in
writing to the Company or , in the case of joint holders, to the bank account of the holder whose
name stands first in the Register in respect of the shares, provided that such holder has provided
to the Company in writing complete information in respect of his/its bank account so as to enable
such remittance or telegraphic transfer to be made. Every such cheque or warrant or remittance or
telegraphic transfer shall, unless the holder or joint holders otherwise direct, be made payable to
the order of the holder or, in the case of joint holders, to the order of the holder whose name
stands first on the Register in respect of such shares, and shall be sent or done (as the case may
be) at his or their risk. Payment of the cheque or warrant by the bank on which it is drawn shall
constitute a good discharge to the Company notwithstanding that it may subsequently appear that the
same has been stolen or that any endorsement thereon has been forged and the remittance or transfer
from the bank account of the Company (or the bank account of any agent or nominee on behalf of the
Company) of the relevant sum shall constitute a good discharge to the Company. Any one of two or
more joint holders may give effectual receipts for any dividends or other moneys payable or
property distributable in respect of the shares held by such joint holders.
143. All dividends or bonuses unclaimed for one (1) year after having been declared may be invested
or otherwise made use of by the Board for the benefit of the Company until claimed. Any dividend
or bonuses unclaimed after a period of six (6) years from the date of declaration may be forfeited
by the Board and if so forfeited, shall revert to the Company. The payment by the Board of any
unclaimed dividend or other sums payable on or in respect of a share into a separate account shall
not constitute the Company a trustee in respect thereof.
144. Whenever the Board, or the Company by ordinary resolution of the Members, has resolved that a
dividend be paid or declared, the Board may, subject to the Act, further resolve that such dividend
be satisfied wholly or in part by the distribution of specific assets of any kind and in particular
of paid up shares, debentures or warrants to subscribe securities of the Company or any other
company, or in any one or more of such ways, and where any difficulty arises in regard to the
distribution the Board may settle the same as it thinks expedient, and in particular may disregard
fractional entitlements or round the same up or down, and may fix the value for distribution of
such specific assets, or any part thereof, and may determine that cash payments shall be made to
any Members upon the footing of the value so fixed in order to adjust the rights of all parties,
and may vest any such specific assets in trustees as may seem expedient to the Board and may
appoint any person to sign any requisite instruments of transfer and other documents on behalf of
the persons entitled to the dividend, and such appointment shall be effective and binding on the
Members. The Board may resolve that no such assets shall be made available to Members with
registered addresses in any particular territory or territories where, in the absence of a
registration statement or other special formalities, such distribution of assets would or might, in
the opinion of the Board, be unlawful or impracticable and in such event the only entitlement of
the Members aforesaid shall be to receive cash payments as aforesaid. Members affected as a result
of the foregoing sentence shall not be or be deemed to be a separate class of Members for any
purpose whatsoever.
145. (1) Whenever the Board, or the Company by ordinary resolution of the Members, has resolved
that a dividend be paid or declared on any class of the share capital of the Company, the Board
may, subject to the Act, further resolve either:
(a)
that such dividend be satisfied wholly or in part in the form of an allotment
of shares credited as fully paid up, provided that the Members entitled thereto will be
entitled to elect to receive such dividend (or part thereof if the Board so determines)
in cash in lieu of such allotment. In such case, the following provisions shall apply:
(i)
the basis of any such allotment shall be determined by the
Board;
(ii)
the Board, after determining the basis of allotment, shall give
not less than ten (10) days’ Notice to the holders of the relevant shares of
the right of election accorded to them and shall send with such notice forms of
election and specify the procedure to be followed and the place at which and
the latest date and time by which duly completed forms of election must be
lodged in order to be effective;
(iii)
the right of election may be exercised in respect of the whole
or part of that portion of the dividend in respect of which the right of
election has been accorded; and
(iv)
the dividend (or that part of the dividend to be satisfied by
the allotment of shares as aforesaid) shall not be payable in cash on shares in
respect whereof the cash election has not been duly exercised (“the non-elected shares”) and in satisfaction thereof shares of the relevant class shall be
issued credited as fully paid up to the holders of the non-elected shares on
the basis of allotment determined as aforesaid and for such purpose the Board
shall capitalise and apply out of any part of the undivided profits of the
Company (including profits carried and standing to the credit of any reserves
or other special account, share premium account or capital redemption reserve)
as the Board may determine, such sum as may be required to pay up in full the
appropriate number of shares of the relevant class for allotment and
distribution to and amongst the holders of the non-elected shares on such
basis; or
(b)
that the Members entitled to such dividend shall be entitled to elect to
receive an allotment of shares credited as fully paid up in lieu of the whole or such
part of the dividend as the Board may think fit. In such case, the following
provisions shall apply:
(i)
the basis of any such allotment shall be determined by the
Board;
(ii)
the Board, after determining the basis of allotment, shall give
not less than ten (10) days’ Notice to the holders of the relevant shares of
the right of election accorded to them and shall send with such notice forms of
election and specify the procedure to be followed and the place at which and
the latest date and time by which duly completed forms of election must be
lodged in order to be effective;
the right of election may be exercised in respect of the whole
or part of that portion of the dividend in respect of which the right of
election has been accorded; and
(iv)
the dividend (or that part of the dividend in respect of which
a right of election has been accorded) shall not be payable in cash on shares
in respect whereof the share election has been duly exercised (“the elected shares”) and in lieu thereof shares of the relevant class shall be issued
credited as fully paid up to the holders of the elected shares on the basis of
allotment determined as aforesaid and for such purpose the Board shall
capitalise and apply out of any part of the undivided profits of the Company
(including profits carried and standing to the credit of any reserves or other
special account, share premium account or capital redemption reserve) as the
Board may determine, such sum as may be required to pay up in full the
appropriate number of shares of the relevant class for allotment and
distribution to and amongst the holders of the elected shares on such basis.
(2)
(a)
The shares issued pursuant to the provisions of paragraph (1) of this Clause
shall rank pari passu in all respects with shares of the same class (if any) then in
issue save only as regards participation in the relevant dividend or in any other
distributions, bonuses or rights paid, made, declared or announced prior to or
contemporaneously with the payment or declaration of the relevant dividend unless,
contemporaneously with the announcement by the Board of their proposal to apply the
provisions of sub-paragraph (a) or (b) of paragraph (2) of this Clause in relation to
the relevant dividend or contemporaneously with their announcement of the distribution,
bonus or rights in question, the Board shall specify that the shares to be issued
pursuant to the provisions of paragraph (1) of this Clause shall rank for participation
in such distribution, bonus or rights.
(b)
The Board may do all acts and things considered necessary or
expedient to give effect to any capitalisation pursuant to the provisions of
paragraph (1) of this Clause, with full power to the Board to make such
provisions as it thinks fit in the case of shares becoming distributable in
fractions (including provisions whereby, in whole or in part, fractional
entitlements are aggregated and sold and the net proceeds distributed to those
entitled, or are disregarded or rounded up or down or whereby the benefit of
fractional entitlements accrues to the Company rather than to the Members
concerned). The Board may authorise any person to enter into on behalf of all
Members interested, an agreement with the Company providing for such
capitalisation and matters incidental thereto and any agreement made pursuant
to such authority shall be effective and binding on all concerned.
(3) The Company may upon the recommendation of the Board by ordinary resolution resolve in
respect of any one particular dividend of the Company that notwithstanding the provisions of
paragraph (1) of this Clause a dividend may be satisfied
wholly in the form of an allotment of
shares credited as fully paid up without offering any right to shareholders to elect to receive
such dividend in cash in lieu of such allotment.
(4) The Board may on any occasion determine that rights of election and the allotment of
shares under paragraph (1) of this Clause shall not be made available or made to any shareholders
with registered addresses in any territory where, in the absence of a registration statement or
other special formalities, the circulation of an offer of such rights of election or the allotment
of shares would or might, in the opinion of the Board, be unlawful or impracticable, and in such
event the provisions aforesaid shall be read and construed subject to such determination. Members
affected as a result of the foregoing sentence shall not be or be deemed to be a separate class of
Members for any purpose whatsoever.
(5) Any resolution declaring a dividend on shares of any class, whether a resolution of
the Company in a Members’ meeting or a resolution of the Board, may specify that the same shall be
payable or distributable to the persons registered as the holders of such shares at the close of
business on a particular date, notwithstanding that it may be a date prior to that on which the
resolution is passed, and thereupon the dividend shall be payable or distributable to them in
accordance with their respective holdings so registered, but without prejudice to the rights inter
se in respect of such dividend of transferors and transferees of any such shares. The provisions
of this Clause shall mutatis mutandis apply to bonuses, capitalisation issues, distributions of
realised capital profits or offers or grants made by the Company to the Members.
RESERVES
146. (1) The Board shall establish an account to be called the share premium account and shall
carry to the credit of such account from time to time a sum equal to the amount or value of the
premium paid on the issue of any share in the Company. Unless otherwise provided by the provisions
of this Constitution, the Board may apply the share premium account in any manner permitted by the
Law. The Company shall at all times comply with the provisions of the Law in relation to the share
premium account.
(2) Before recommending any dividend, the Board may set aside out of the profits of the
Company such sums as it determines as reserves which shall, at the discretion of the Board, be
applicable for any purpose to which the profits of the Company may be properly applied and pending
such application may, also at such discretion, either be employed in the business of the Company or
be invested in such investments as the Board may from time to time think fit and so that it shall
not be necessary to keep any investments constituting the reserve or reserves separate or distinct
from any other investments of the Company. The Board may also without placing the same to reserve
carry forward any profits which it may think prudent not to distribute.
CAPITALISATION
147. The Company may, upon the recommendation of the Board, at any time and from time to time pass
an ordinary resolution to the effect that it is desirable to capitalise all or any part of any
amount for the time being standing to the credit of any reserve or fund (including a share premium
account and capital redemption reserve and the profit and loss
account) whether or not the same is
available for distribution and accordingly that such amount be set free for distribution among the
Members or any class of Members who would be entitled thereto if it were distributed by way of
dividend and in the same proportions, on the footing that the same is not paid in cash but is
applied either in or towards paying up the amounts for the time being unpaid on any shares in the
Company held by such Members respectively or in paying up in full shares, debentures or other
obligations of the Company which are to be issued and distributed credited as fully paid up among such Members, or partly in
one way and partly in the other, and the Board shall give effect to such resolution provided that,
for the purposes of this Clause, a share premium account and any capital redemption reserve or fund
representing unrealised profits, may be applied only in paying up in full shares of the Company to
be issued to such Members credited as fully paid.
148. Subject to the Act, the Board may settle as it considers appropriate, any difficulty
arising in regard to any distribution under the last preceding Clause and in particular may
authorise any person to sell and transfer any fractions or may resolve that the distribution should
be as nearly as may be practicable in the correct proportion but not exactly so or may ignore
fractions altogether, and may determine that cash payments shall be made to any Members in order to
adjust the rights of all parties, as may seem expedient to the Board. The Board may appoint any
person to sign on behalf of the persons entitled to participate in the distribution any contract
necessary or desirable for giving effect thereto and such appointment shall be effective and
binding upon the Members.
149. [This clause has been intentionally left blank.]
ACCOUNTING RECORDS
150. The Board shall cause true accounts to be kept of the sums of money received and expended by
the Company, and the matters in respect of which such receipt and expenditure take place, and of
the property, assets, credits and liabilities of the Company and of all other matters required by
the Law or necessary to give a true and fair view of the Company’s affairs and to explain its
transactions.
151. The accounting records shall be kept at the Office or, at such other place or places as the
Board decides and shall always be open to inspection by the Directors. No Member (other than a
Director) shall have any right of inspecting any accounting record or book or document of the
Company except as conferred by law or authorised by the Board or the Company by ordinary resolution
of the Members.
152. Subject to Clause 153, a printed copy of the Directors’ report, accompanied by the balance
sheet and profit and loss account, including every document required by law to be annexed thereto,
made up to the end of the applicable financial year and containing a summary of the assets and
liabilities of the Company under convenient heads and a statement of income and expenditure,
together with a copy of the Auditors’ report, shall be sent to each person entitled thereto at
least ten (10) days before the date of the Members’ meeting and laid before the Company at the
annual meeting held in accordance with Clause 56 provided that this Clause shall not require a copy
of those documents to be sent to any person whose address the Company is not aware or to more than
one of the joint holders of any shares or debentures.
153. Subject to due compliance with all applicable Statutes, rules and regulations, including,
without limitation, the rules of the Designated Stock Exchange, and to obtaining all necessary
consents, if any, required thereunder, the requirements of Clause 152 shall be deemed satisfied in
relation to any person by sending to the person in any manner not prohibited by the Statutes, a
summary financial statement derived from the Company’s annual accounts and the directors’ report
which shall be in the form and containing the information required by applicable laws and
regulations, provided that any person who is otherwise entitled to the annual financial statements
of the Company and the directors’ report thereon may, if he so requires by notice in writing served
on the Company, demand that the Company sends to him, in addition to a summary financial statement, a complete printed copy of the
Company’s annual financial statement and the directors’ report thereon.
154. The requirement to send to a person referred to in Clause 152 the documents referred to in
that Clause or a summary financial report in accordance with Clause 153 shall be deemed satisfied
where, in accordance with all applicable Statutes, rules and regulations, including, without
limitation, the rules of the Designated Stock Exchange, the Company publishes copies of the
documents referred to in Clause 152 and, if applicable, a summary financial report complying with
Clause 153, on the Company’s computer network or via the Internet or in any other permitted manner,
and that person has agreed or is deemed to have agreed to treat the publication or receipt of such
documents in such manner as discharging the Company’s obligation to send to him a copy of such
documents.
AUDIT
155. Subject to applicable law and rules of the Designated Stock Exchange:
(1) At the annual meeting or at a subsequent special meeting in each year, the Members shall
appoint an auditor to audit the accounts of the Company and such auditor shall hold office until
the Members appoint another auditor. Such auditor may be a Member but no Director or officer or
employee of the Company shall, during his continuance in office, be eligible to act as an auditor
of the Company.
(2) The Members may, at any annual or special meeting convened and held in accordance with
this Constitution, by special resolution remove the Auditor at any time before the expiration of
his term of office and shall by ordinary resolution at that meeting appoint another Auditor in his
stead for the remainder of his term.
156. Subject to the Law, the accounts of the Company shall be audited at least once in every
year.
157. The remuneration of the Auditor shall be fixed by the Company by ordinary resolution of the
Members or in such manner as the Members may determine.
158. If the office of auditor becomes vacant by the resignation or death of the Auditor, or by his
becoming incapable of acting by reason of illness or other disability at a time when his services
are required, the Board may appoint an Auditor to fill the vacancy and determine the remuneration
of such Auditor.
159. The Auditor shall at all reasonable times have access to all books kept by the Company and to
all accounts and vouchers relating thereto; and he may call on the Directors or officers of the
Company for any information in their possession relating to the books or affairs of the Company.
160. The statement of income and expenditure and the balance sheet provided for by this
Constitution shall be examined by the Auditor and compared by him with the books, accounts and
vouchers relating thereto; and he shall make a written report thereon stating whether such
statement and balance sheet are drawn up so as to present fairly the financial position of the
Company and the results of its operations for the period under review and, in case information
shall have been called for from Directors or officers of the Company, whether the same has been
furnished and has been satisfactory. The financial statements of the Company shall be audited by
the Auditor in accordance with internationally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally
accepted auditing standards and the report of the Auditor shall be submitted to the Members in an
annual or special meeting. The generally accepted auditing standards referred to herein may be
those of a country or jurisdiction other than Mauritius. If so, the financial statements and the
report of the Auditor should disclose this fact and name such country or jurisdiction.
NOTICES
161. Any Notice or document, whether or not, to be given or issued under this Constitution from the
Company to a Member shall be in writing or by cable, telex, facsimile transmission message or
electronic mail (provided that in the case of electronic mail, the Member has consented in writing
to Notices and documents from the Company, the depository or any other person sending the relevant
Notice(s) and/or document(s) being sent to such Member by electronic mail and such Member has
provided the Company, the Secretary or the depository (as the case may be) with an electronic mail
address to which Notices and documents may be sent), and any such Notice and document may be served
or delivered by the Company on or to any Member either personally or by sending it through the post
in a prepaid envelope addressed to such Member at his registered address as appearing in the
Register or at any other address supplied by him to the Company for the purpose or, as the case may
be, by transmitting it to any such address or transmitting it to any telex or facsimile
transmission number or email address supplied by him to the Company for the giving of Notice to him
or which the person transmitting the notice reasonably and bona fide believes at the relevant time
will result in the Notice being duly received by the Member or, to the extent permitted by the
applicable laws, by placing it on the Company’s website and giving to the member a notice stating
that the notice or other document is available there (a “notice of availability”). The notice of
availability may be given to the Member by any of the means set out above. In the case of joint
holders of a share all notices shall be given to that one of the joint holders whose name stands
first in the Register and notice so given shall be deemed a sufficient service on or delivery to
all the joint holders.
162. Any Notice or other document:
(a)
if served or delivered by post, shall where appropriate be sent by airmail and
shall be deemed to have been served or delivered five (5) days following that on which
the envelope containing the same, properly prepaid and addressed, is put
into the post; in proving such service or delivery it shall be sufficient to prove that the envelope
or wrapper containing the notice or document was properly addressed and put into the
post and a certificate in writing signed by the Secretary or other officer of the
Company or other person appointed by the Board that the envelope or wrapper containing
the notice or other document was so addressed and put into the post shall be conclusive
evidence thereof;
(b)
if served or delivered in any other manner contemplated by this Constitution,
shall be deemed to have been served or delivered at the time of personal service or
delivery or, as the case may be, at the time of the relevant despatch or transmission;
and in proving such service or delivery a certificate in writing signed by the
Secretary or other officer of the Company or other person appointed by the Board as to the act and time of such service, delivery, despatch or
transmission shall be conclusive evidence thereof; and
(c)
may be given to a Member in the English language or such other language as may
be approved by the Directors, subject to due compliance with all applicable Statutes,
rules and regulations.
163. (1) Any Notice or other document delivered or sent by post to or left at the registered
address of any Member in pursuance of this Constitution shall, notwithstanding that such Member is
then dead or bankrupt or that any other event has occurred, and whether or not the Company has
notice of the death or bankruptcy or other event, be deemed to have been duly served or delivered
in respect of any share registered in the name of such Member as sole or joint holder unless his
name shall, at the time of the service or delivery of the notice or document, have been removed
from the Register as the holder of the share, and such service or delivery shall for all purposes
be deemed a sufficient service or delivery of such Notice or document on all persons interested
(whether jointly with or as claiming through or under him) in the share.
(2) A notice may be given by the Company to the person entitled to a share in consequence of
the death, mental disorder or bankruptcy of a Member by sending it through the post in a prepaid
letter, envelope or wrapper addressed to him by name, or by the title of representative of the
deceased, or trustee of the bankrupt, or by any like description, at the address, if any, supplied
for the purpose by the person claiming to be so entitled, or (until such an address has been so
supplied) by giving the notice in any manner in which the same might have been given if the death,
mental disorder or bankruptcy had not occurred.
(3) Any person who by operation of law, transfer or other means whatsoever shall become
entitled to any share shall be bound by every notice in respect of such share which prior to his
name and address being entered on the Register shall have been duly given to the person from whom
he derives his title to such share.
SIGNATURES
164. For the purposes of this Constitution, a cable or telex or facsimile message purporting to
come from a holder of shares or, as the case may be, a Director, or, in the case of a corporation
which is a holder of shares from a director or the secretary thereof or a duly
appointed attorney
or duly authorised representative thereof for it and on its behalf, shall in the absence of express
evidence to the contrary available to the person relying thereon at the relevant time be deemed to
be a document or instrument in writing signed by such holder or Director in the terms in which it
is received.
WINDING UP
165. (1) The Board shall have power in the name and on behalf of the Company to present a petition
to the court for the Company to be wound up.
(2) A resolution that the Company be wound up by the court or be wound up voluntarily shall be
a special resolution.
166. (1) Subject to any special rights, privileges or restrictions as to the distribution of
available surplus assets on liquidation for the time being attached to any class or classes of
shares (i) if the Company shall be wound up and the assets available for distribution amongst the
Members of the Company shall be more than sufficient to repay the whole of the capital paid up at
the commencement of the winding up, the excess shall be distributed pari passu amongst such members
in proportion to the amount paid up on the shares held by them respectively and (ii) if the Company
shall be wound up and the assets available for distribution amongst the Members as such shall be
insufficient to repay the whole of the paid-up capital such assets shall be distributed so that, a
nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up, or
which ought to have been paid up, at the commencement of the winding up on the shares held by them
respectively.
(2) If the Company shall be wound up (whether the liquidation is voluntary or by the court)
the liquidator may, with the authority of a special resolution and any other sanction required by
the Law, divide among the Members in specie or kind the whole or any part of the assets of the
Company and whether or not the assets shall consist of properties of one kind or shall consist of
properties to be divided as aforesaid of different kinds, and may for such purpose set such value
as he deems fair upon any one or more class or classes of property and may determine how such
division shall be carried out as between the Members or different classes of Members. The
liquidator may, with the like authority, vest any part of the assets in trustees upon such trusts
for the benefit of the Members as the liquidator with the like authority shall think fit, and the
liquidation of the Company may be closed and the Company dissolved, but so that no contributory
shall be compelled to accept any shares or other property in respect of which there is a liability.
INDEMNITY
167. (1) Subject to any indemnification agreement which may be entered into by the Company and the
provisions of and so far as may be permitted by Law, every Director, Secretary or other officer for
the time being of the Company and the liquidator or trustees (if any) for the time being acting in
relation to any of the affairs of the Company and everyone of them shall be entitled to be
indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred or
sustained by them or any of them in the execution and discharge of their duties in their respective
offices or in relation thereto, including any liability
incurred by him in defending any
proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been
done or omitted by him as a director, officer or employee of the Company and in which judgment is
given in his favour (or the proceedings otherwise disposed of without any finding or admission of
any material breach of duty on his part) or in which he is acquitted or in connection with any
application under any statute for relief from liability in respect of any such act or omission in
which relief is granted to him by the court; PROVIDED THAT this indemnity shall not extend to any
matter in respect of any fraud or dishonesty which may attach to any of said persons.
(2) Without prejudice to the generality of the foregoing, no Director, Secretary or other
officer of the Company shall be liable for the acts, receipts, neglects or defaults of any other Director or officer of the Company or for joining in any receipt or other act for
conformity or for any loss or expense to the Company through the insufficiency or deficiency of
title to any property acquired by order of the Directors for or on behalf of the Company or for the
insufficiency or deficiency of any security in or upon which any of the moneys of the Company shall
be invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of
any person with whom any moneys, securities or effects shall be deposited or left or for any other
loss, damage or misfortune whatever which shall happen in the execution of the duties of his office
or in relation thereto unless the same shall happen through his own fraud, negligence, wilful
default, breach of duty or breach of trust.
(3) The Company may effect insurance for a Director or employee of the Company or a related
company to the full extent permitted under section 161 of the Act. For the purposes of this
clause, “Director” includes:
(a)
alternate directors; and
(b)
a person to whom a power or duty of the Board has been directly delegated by
the Board with that person’s consent or acquiescence, or who exercises the power or
duty with the consent or acquiescence of the Board.
AMENDMENT TO CONSTITUTION AND NAME OF COMPANY
168. No provision of this Constitution shall be rescinded, altered or amended and no new provision
of this Constitution shall be made until the same has been approved by a special resolution of the
Members. A special resolution shall be required to alter the provisions of this Constitution or to
change the name of the Company.
INFORMATION
169. No Member shall be entitled to require discovery of or any information respecting any detail
of the Company’s trading or any matter which is or may be in the nature of a trade secret or secret
process which may relate to the conduct of the business of the Company and which in the opinion of
the Directors it will be inexpedient in the interests of the members of the Company to communicate
to the public.
170. (1) Each Director shall, upon his appointment to the Board, give an undertaking to the Company
that, for so long as he remains a Director, he shall forthwith give the Secretary notice in writing
of the particulars of the shares beneficially owned by him at the time of his appointment and of
any change in such particulars (including the circumstances of any such change).
(2) Each Member shall, upon becoming a substantial shareholder of the Company, give an
undertaking to the Company that, for so long as he remains as a substantial shareholder of the
Company, he shall give the Secretary notice in writing of the particulars of the shares in which he has an interest at the time of his becoming a substantial shareholder or of
any change in such particulars (including the circumstances of any such change) within 48 hours of
such time or change (as the case may be), provided that he shall only be required to give notice of
a change in the percentage level of his interests in the shares under this Clause where there is a
change of one per cent. (1%) or more in the percentage level of his shareholding interest in the
relevant class of shares in the Company. For the purpose of this Clause, the term “substantial
shareholder” shall have the same meaning ascribed to it in Section 2(1) of the Act. The requirement
to give notice under this Clause 170(2) shall not apply to a depository.
CERTIFICATION BY APPLICANT(S)
We, the undersigned applicant(s) for filing this Constitution, HEREBY CERTIFY that this document is
the Constitution of the Company adopted pursuant to a special resolution of the Members of the
Company dated
2010 and effective immediately upon the completion of the Company’s initial public
offering of ordinary shares on 2010.
