Articles of Association - OpenTV Corp.
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
ARTICLES OF ASSOCIATION
OF
OPENTV CORP.
PRELIMINARY
1. In these Articles, if not inconsistent with the subject or context, the
words and expressions standing in the first column of the following table
shall bear the meanings set opposite them respectively in the second column
thereof.
Words Meaning
----- -------
capital The sum of the aggregate par value of all
outstanding shares with par value of the Company
and shares with par value held by the Company as
treasury shares plus
(a) the aggregate of the amounts designated as
capital of all outstanding shares without
par value of the Company and shares without
par value held by the Company as treasury
shares and
(b) the amounts as are from time to time
transferred from surplus to capital by a
resolution of directors.
chief executive officer The chief executive officer from time to time of
the Company.
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member A person who holds shares in the Company.
person Any individual, firm, company, corporation,
trust, government, state or agency of a state,
joint venture, the estate of a deceased
individual, limited liability company, public
company limited, partnership or incorporated or
unincorporated association of persons.
resolution of directors Except as otherwise required by law, the
Memorandum or these Articles, a resolution
(a) approved at a duly convened and constituted
meeting of directors of the Company or of a
committee of directors of the Company by
the affirmative vote of a simple majority
of the directors present at the meeting who
voted and did not abstain or
(b) consented to in writing by three-quarters
of all directors or three-quarters of all
members of the committee, as the case may
be;
except that where a director is given more than
one vote, he shall be counted by the number of
votes he casts for the purpose of establishing a
majority.
resolution of members Except as otherwise required by law, the
Memorandum or these Articles, a resolution
approved at a duly convened and constituted
meeting of the members of the Company by the
affirmative vote of
(a) a simple majority of the votes of the
shares entitled to vote thereon which were
present at the meeting and were voted and
not abstained or
(b) a simple majority of the votes of each
class or series of shares which were
present at the meeting and entitled to vote
thereon as a class or series and were voted
and not abstained and of a simple majority
of the votes of the remaining shares
entitled to vote thereon which were present
at the meeting and were voted and not
abstained.
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securities Shares and debt obligations of every kind, and
options, warrants and rights to acquire shares,
or debt obligations.
surplus The excess, if any, at the time of the
determination of the total assets of the Company
over the aggregate of its total liabilities, as
shown in its books of account, plus the
Company's capital.
the Act The International Business Companies Act (No. 8
of 1984) including any modification, extension,
re-enactment or renewal thereof and any
regulations made thereunder.
the Memorandum The Memorandum of Association of the Company as
originally framed or as from time to time
amended.
the Seal Any Seal which has been duly adopted as the Seal
of the Company.
these Articles These Articles of Association as originally
framed or as from time to time amended.
treasury shares Shares in the Company that were previously
issued but were repurchased, redeemed or
otherwise acquired by the Company and not
cancelled.
2. "Written" or any term of like import includes words typewritten, printed,
painted, engraved, lithographed, photographed or represented or reproduced
by any mode of reproducing words in a visible form, including telex,
facsimile, telegram, cable or other form of writing produced by electronic
communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear
the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
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5. A reference in these Articles to voting in relation to shares shall be
construed as a reference to voting by members holding the shares except
that it is the votes allocated to the shares that shall be counted and not
the number of members who actually voted and a reference to shares being
present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles is, unless otherwise stated, a
reference to the currency in which shares in the Company shall be issued
according to the provisions of the Memorandum.
REGISTERED SHARES
7. Every member holding registered shares in the Company shall be entitled to
a certificate signed by a director or officer of the Company and under the
Seal specifying the share or shares held by him and the signature of the
director or officer and the Seal may be facsimiles.
8. If several persons are registered as joint holders of any shares, any one
of such persons may give an effectual receipt for any dividend payable in
respect of such shares.
SHARES, AUTHORIZED CAPITAL, CAPITAL AND SURPLUS
9. Subject to the provisions of these Articles, the Memorandum and any
resolution of members, the unissued shares of the Company shall be at the
disposal of the directors who may, without limiting or affecting any rights
previously conferred on the holders of any existing shares or class or
series of shares, offer, allot, grant options over or otherwise dispose of
shares to such persons, at such times and upon such terms and conditions as
the Company may by resolution of directors determine.
10. No share in the Company may be issued until the consideration in respect
thereof is fully paid, and when issued the share is for all purposes fully
paid and non-assessable save that a share issued for a promissory note or
other written obligation for payment of a debt may be issued subject to
forfeiture in the manner prescribed in these Articles.
11. Shares in the Company shall be issued for money, services rendered,
personal property, an estate in real property, a promissory note or other
binding obligation to contribute money or property or any combination of
the foregoing as shall be determined by a resolution of directors.
12. Shares in the Company may be issued for such amount of consideration as the
directors may from time to time by resolution of directors determine,
except that in the case of shares with par value, the amount shall not be
less than the par value, and in the absence of fraud the decision of the
directors as to the value of the consideration received by the Company in
respect of the issue is conclusive unless a question of law is involved.
The consideration in respect of the shares constitutes capital to the
extent of the par value and the excess constitutes surplus.
13. A share issued by the Company upon conversion of, or in exchange for,
another share or a debt obligation or other security in the Company, shall
be treated for all
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purposes as having been issued for money equal to the consideration
received or deemed to have been received by the Company in respect of the
other share, debt obligation or security.
14. Treasury shares may be disposed of by the Company on such terms and
conditions (not otherwise inconsistent with these Articles) as the Company
may by resolution of directors determine.
15. The Company may issue fractions of a share and a fractional share shall
have the same corresponding fractional liabilities, limitations,
preferences, privileges, qualifications, restrictions, rights and other
attributes of a whole share of the same class or series of shares.
16. Upon the issue by the Company of a share without par value, if an amount is
stated in the Memorandum to be authorized capital represented by such
shares then each share shall be issued for no less than the appropriate
proportion of such amount which shall constitute capital, otherwise the
consideration in respect of the share constitutes capital to the extent
designated by the directors and the excess constitutes surplus, except that
the directors must designate as capital an amount of the consideration that
is at least equal to the amount that the share is entitled to as a
preference, if any, in the assets of the Company upon liquidation of the
Company.
17. The Company may purchase, redeem or otherwise acquire and hold its own
shares on such terms and conditions as may be determined by a resolution of
directors, provided, however, that the Company may only do so out of
surplus or in exchange for newly issued shares of equal value.
18. No purchase, redemption or other acquisition of shares shall be made unless
the directors determine that immediately after the purchase, redemption or
other acquisition the Company will be able to satisfy its liabilities as
they become due in the ordinary course of its business and the realizable
value of the assets of the Company will not be less than the sum of its
total liabilities, other than deferred taxes, as shown in the books of
account, and its capital and, in the absence of fraud, the decision of the
directors as to the realizable value of the assets of the Company is
conclusive, unless a question of law is involved.
19. A determination by the directors under the preceding Regulation is not
required where shares are purchased, redeemed or otherwise acquired
a) pursuant to a right of a member to have his shares redeemed or to have
his shares exchanged for money or other property of the Company;
b) by virtue of a transfer of capital pursuant to Regulation 45;
c) by virtue of the provisions of Section 83 of the Act; or
d) pursuant to an order of the Court.
20. Shares that the Company purchases, redeems or otherwise acquires pursuant
to the preceding Regulation may be cancelled or held as treasury shares
except to the extent
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that such shares are in excess of 80 percent of the issued shares of the
Company in which case they shall be cancelled but they shall be available
for reissue.
21. Where shares in the Company are held by the Company as treasury shares or
are held by another company of which the Company holds, directly or
indirectly, shares having more than 50 percent of the votes in the election
of directors of the other company, such shares of the Company are not
entitled to vote or to have dividends paid thereon and shall not be treated
as outstanding for any purpose except for purposes of determining the
capital of the Company.
22. The Company may by a resolution of directors include in the computation of
surplus for any purpose the unrealized appreciation of the assets of the
Company, and, in the absence of fraud, the decision of the directors as to
the value of the assets is conclusive, unless a question of law is
involved.
MORTGAGES AND CHARGES OF SHARES
23. Members may mortgage or charge their shares in the Company and upon
satisfactory evidence thereof the Company shall give effect to the terms of
any valid mortgage or charge except insofar as it may conflict with any
requirements herein contained for consent to the transfer of shares.
24. In the case of the mortgage or charge of shares there may be entered in the
share register of the Company at the request of the registered holder of
such shares
a) a statement that the shares are mortgaged or charged;
b) the name of the mortgagee or chargee; and
c) the date on which the aforesaid particulars are entered in the share
register.
25. Where particulars of a mortgage or charge are registered, such particulars
shall be cancelled
a) with the consent of the named mortgagee or chargee or anyone authorized
to act on his behalf; or
b) upon evidence satisfactory to the directors of the discharge of the
liability secured by the mortgage or charge and the issue of such
indemnities as the directors shall consider necessary or desirable.
26. Whilst particulars of a mortgage or charge are registered, no transfer of
any share comprised therein shall be effected without the written consent
of the named mortgagee or chargee or anyone authorized to act on his
behalf.
FORFEITURE
27. When shares issued for a promissory note or other written obligation for
payment of a debt have been issued subject to forfeiture, the following
provisions shall apply.
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28. Written notice specifying a date for payment to be made and the shares in
respect of which payment is to be made shall be served on the member who
defaults in making payment pursuant to a promissory note or other written
obligations to pay a debt.
29. The written notice specifying a date for payment shall
a) name a further date not earlier than the expiration of 14 days from the
date of service of the notice on or before which payment required by
the notice is to be made; and
b) contain a statement that in the event of non-payment at or before the
time named in the notice the shares, or any of them, in respect of
which payment is not made will be liable to be forfeited.
30. Where a written notice has been issued and the requirements have not been
complied with within the prescribed time, the directors may at any time
before tender of payment forfeit and cancel the shares to which the notice
relates.
31. The Company is under no obligation to refund any money to the member whose
shares have been forfeited and cancelled pursuant to these provisions. Upon
forfeiture and cancellation of the shares the member is discharged from any
further obligation to the Company with respect to the shares forfeited and
cancelled.
LIEN
32. The Company shall have a first and paramount lien on every share issued for
a promissory note or for any other binding obligation to contribute money
or property or any combination thereof to the Company, and the Company
shall also have a first and paramount lien on every share standing
registered in the name of a member, whether singly or jointly with any
other person or persons, for all the debts and liabilities of such member
or his estate to the Company, whether the same shall have been incurred
before or after notice to the Company of any interest of any person other
than such member, and whether the time 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 payable thereon. The directors may at
any time either generally, or in any particular case, waive any lien that
has arisen or declare any share to be wholly or in part exempt from the
provisions of this Regulation.
33. In the absence of express provisions regarding sale in the promissory note
or other binding obligation to contribute money or property, the Company
may sell, in such manner as the directors may by resolution of directors
determine, any share on which the Company has a lien, but no sale shall be
made unless some sum in respect of which the lien exists is presently
payable nor until the expiration of twenty-one days after a notice in
writing, stating and demanding payment of the sum presently payable and
giving notice of the intention to sell in default of such payment, has been
served on the holder for the time being of the share.
34. The net proceeds of the sale by the Company of any shares on which it has a
lien shall be applied in or towards payment of discharge of the promissory
note or other
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binding obligation to contribute money or property or any combination
thereof 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 holder of the share immediately before such sale. For
giving effect to any such sale the directors may authorize some person to
transfer the share sold to the purchaser thereof. The purchaser shall be
registered as the holder of the share and he shall not be bound to see to
the application of the purchase money, nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings in reference
to the sale.
TRANSFER OF SHARES
35. Subject to any limitations in the Memorandum, registered shares in the
Company may be transferred by a written instrument of transfer signed by
the transferor and containing the name and address of the transferee, but
in the absence of such written instrument of transfer the directors may
accept such evidence of a transfer of shares as they consider appropriate.
36. The Company shall not be required to treat a transferee of a registered
share in the Company as a member until the transferee's name has been
entered in the share register.
TRANSMISSION OF SHARES
37. The executor or administrator of a deceased member, the guardian of an
incompetent member or the trustee of a bankrupt member shall be the only
person recognized by the Company as having any title to his share but they
shall not be entitled to exercise any rights as a member of the Company
until they have proceeded as set forth in the next following three
Regulations.
38. The production to the Company of any document which is evidence of probate
of the will, or letters of administration of the estate, or confirmation as
executor, of a deceased member or of the appointment of a guardian of an
incompetent member or the trustee of a bankrupt member shall be accepted by
the Company even if the deceased, incompetent or bankrupt member is
domiciled outside the British Virgin Islands if the document evidencing the
grant of probate or letters of administration, confirmation as executor,
appointment as guardian or trustee in bankruptcy is issued by a foreign
court which had competent jurisdiction in the matter. For the purpose of
establishing whether or not a foreign court had competent jurisdiction in
such a matter the directors may obtain appropriate legal advice. The
directors may also require an indemnity to be given by the executor,
administrator, guardian or trustee in bankruptcy.
39. Any person becoming entitled by operation of law or otherwise to a share or
shares in consequence of the death, incompetence or bankruptcy of any
member may be registered as a member upon such evidence being produced as
may reasonably be required by the directors. An application by any such
person to be registered as a member shall for all purposes be deemed to be
a transfer of shares of the deceased, incompetent or bankrupt member and
the directors shall treat it as such.
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40. Any person who has become entitled to a share or shares in consequence of
the death, incompetence or bankruptcy of any member may, instead of being
registered himself, request in writing that some person to be named by him
be registered as the transferee of such share or shares and such request
shall likewise be treated as if it were a transfer.
41. What amounts to incompetence on the part of a person is a matter to be
determined by the court having regard to all the relevant evidence and the
circumstances of the case.
ALTERATION OF AUTHORIZED CAPITAL OR CAPITAL
42. The Company may either by a resolution of members or by a resolution of
directors amend the Memorandum to
a) increase or reduce its authorized capital and in connection therewith
the Company may in respect of any unissued shares increase or reduce
the number of such shares, increase or reduce the par value of any such
shares or effect any combination of the foregoing;
b) increase the number of its shares having no par value;
c) increase its capital constituted by shares of no par value by
transferring reserves or profits to the capital, with or without a
distribution of shares;
d) combine and divide all or any part of its share capital into shares of
larger amount than its existing shares or combine and reduce the number
of the issued no par value shares;
e) increase the number of its issued no par value shares without an
increase of its capital;
f) subdivide its shares, or any of them, into shares of smaller amount
than is fixed by the Memorandum;
g) convert any shares having a par value into shares of no par value;
h) convert any shares of no par value into shares having a par value;
i) convert any of its shares, whether issued or not, into shares of
another class.
43. The Company may, either by a resolution of members or by a resolution of
directors, amend the Memorandum to
a) divide the shares, including issued shares, of a class or series into a
larger number of shares of the same class or series; or
b) combine the shares, including issued shares, of a class or series into
a smaller number of shares of the same class or series,
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provided, however, that where shares having a par value are divided or
combined under (a) or (b) of this Regulation, the aggregate par value of
the new shares must be equal to the aggregate par value of the original
shares.
44. The capital of the Company may by a resolution of directors be increased by
transferring an amount of the surplus of the Company to capital.
45. Subject to the provisions of the two next succeeding Regulations, the
capital of the Company may by resolution of directors be reduced by
transferring an amount of the capital of the Company to surplus.
46. No reduction of capital shall be effected that reduces the capital of the
Company to an amount that immediately after the reduction is less than the
aggregate par value of all outstanding shares with par value and all shares
with par value held by the Company as treasury shares and the aggregate of
the amounts designated as capital of all outstanding shares without par
value and all shares without par value held by the Company as treasury
shares that are entitled to a preference, if any, in the assets of the
Company upon liquidation of the Company.
47. No reduction of capital shall be effected unless the directors determine
that immediately after the reduction the Company will be able to satisfy
its liabilities as they become due in the ordinary course of its business
and that the realizable assets of the Company will not be less than its
total liabilities, other than deferred taxes, as shown in the books of the
Company and its remaining capital, and, in the absence of fraud, the
decision of the directors as to the realizable value of the assets of the
Company is conclusive, unless a question of law is involved.
MEETINGS AND CONSENTS OF MEMBERS
48. Any action required or permitted to be taken by the members must be
effected at a duly called annual or special meeting (as described in
Regulation 51) of the members entitled to vote on such action or by written
consent without a meeting. The following provisions shall apply to such
written consent.
(a) Unless otherwise provided in the Memorandum, any action required by
statute to be taken at any annual or special meeting of members or any
action that may be taken at any annual or special meeting of members,
may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
(b) Every written consent shall bear the date of signature of each member
who signs the consent, and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days
of the earliest dated consent delivered to the corporation in the
manner herein required, written consents signed by a sufficient number
of members to take action are delivered to the Company at its
registered office in the British Virgin Islands, its principal place
of business or an officer or agent of the Company having custody of
the book in which proceedings of meetings of members are
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recorded. Delivery made to the Company's registered office shall be by
hand or by certified or registered mail, return receipt requested.
(c) Notwithstanding the foregoing, the members may not take any action by
written consent after the date on which the Company closes a public
offering by it of shares pursuant to an effective registration
statement under the United States Securities Act of 1933, as amended.
49. Meetings of members shall be held at such times and places as may be fixed
from time to time by the directors.
50. An annual meeting of members for election of directors and for such other
business as may come before the meeting shall be held each year at such
date and time as may be determined by the directors.
51. Special meetings of members may be called only by the directors pursuant to
a resolution of directors to that effect or by the chief executive officer.
The aforegoing provisions of this Regulation 51, as well as the provisions
of Regulation 48 shall not apply to action taken by holders of preference
shares.
52. Written notice of all meetings of members, stating the time, place and
purposes thereof, shall be given not fewer than ten days before the date of
the proposed meeting to those persons whose names appear as members in the
share register of the Company on the date of the notice and are entitled to
vote at the meeting.
53. The directors may fix the date notice is given of a meeting of members as
the record date for determining those shares that are entitled to vote at
the meeting.
54. A meeting of members may be called on short notice:
a) if members holding not less than 90 percent of the total number of
shares entitled to vote on all matters to be considered at the meeting,
or 90 percent of the votes of each class or series of shares where
members are entitled to vote thereon as a class or series together with
not less than a 90 percent majority of the remaining votes, have agreed
to short notice of the meeting, or
b) if all members holding shares entitled to vote on all or any matters to
be considered at the meeting have waived notice of the meeting and for
this purpose presence at the meeting shall be deemed to constitute
waiver.
55. The inadvertent failure of the directors to give notice of a meeting to a
member, or the fact that a member has not received notice, does not
invalidate the meeting.
56. A member may be represented at a meeting of members by a proxy who may
speak and vote on behalf of the member.
57. The instrument appointing a proxy shall be produced at the place appointed
for the meeting before the time for holding the meeting at which the person
named in such instrument proposes to vote.
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58. An instrument appointing a proxy shall be in substantially the following
form or such other form as the Chairman of the meeting shall accept as
properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above Company
with shares HEREBY APPOINT
of or failing him
of to be my/our proxy to vote for me/us at the
meeting of members to be held on the day of
and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
----------------------------
Member
59. The following shall apply in respect of joint ownership of shares:
a) if two or more persons hold shares jointly each of them may be present
in person or by proxy at a meeting of members and may speak as a
member;
b) if only one of the joint owners is present in person or by proxy he may
vote on behalf of all joint owners, and
c) if two or more of the joint owners are present in person or by proxy
they must vote as one.
60. A member shall be deemed to be present at a meeting of members if he
participates by telephone or other electronic means and all members
participating in the meeting are able to hear each other.
61. A meeting of members is duly constituted if, at the commencement of the
meeting, there are present in person or by proxy not less than 50 percent
of the votes of the shares or class or series of shares entitled to vote on
resolutions of members to be considered at the meeting. If a quorum be
present, notwithstanding the fact that such quorum may be represented by
only one person then such person may resolve any matter and a certificate
signed by such person accompanied where such person be a proxy by a copy of
the proxy form shall constitute a valid resolution of members.
62. If within two hours from the time appointed for the meeting a quorum is not
present, the meeting shall stand adjourned to the next business day at the
same time and place or to such other time and place as the directors may
determine, and if at the adjourned meeting there are present within one
hour from the time appointed for the meeting
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in person or by proxy not less than one third of the votes of the shares or
each class or series of shares entitled to vote on the resolutions to be
considered by the meeting, those present shall constitute a quorum but
otherwise the meeting shall be dissolved.
63. At any meeting of members, only such business shall be conducted as shall
have been brought before such meeting -
a) by or at the direction of the Chairman of the Board of Directors; or
b) by any member who is a holder of record at the time of the giving of
the notice provided for in Regulation 52 who is entitled to vote at the
meeting and who complies with the procedures set out in Regulation 64.
64. For business to be properly brought to the annual meeting of members by a
member, the member must have given written notice thereof, either by
personal delivery or by prepaid registered post to the Secretary of the
Company (the "Secretary") at the principal executive offices of the Company
not less than 30 days nor more than 60 days prior to the meeting as
originally scheduled, provided, however, that, if less than 40 days' notice
or prior public disclosure of the date of the meeting is given or made to
members, notice by the member to be timely must be so received not later
than the close of business on the fifth day following the day on which such
notice of the date of the general meeting was posted or such public
disclosure was made. For the purposes of this Regulation 64, any
adjournment(s) or postponement(s) of the original meeting whereby the
meeting will reconvene within 30 days from the original date shall be
deemed, for purposes of notice, to be a continuation of the original
meeting and no business may be brought before any reconvened meeting unless
such timely notice of such business was given to the Secretary for the
meeting as originally scheduled. A member's notice to the Secretary shall
set out as to each matter that the member wishes to be brought before the
meeting of members -
a) a brief description of the business desired to be brought before the
meeting;
b) the name and address of record of the member proposing such business;
c) the class and number of shares of the Company which are beneficially
owned by such member;
d) any material interest of such member in such business; and
e) if the member intends to solicit proxies in support of such member's
proposal, a representation to that effect.
Notwithstanding the aforegoing, nothing in this Regulation 64 shall be
interpreted or construed to require the inclusion of information about any
such proposal in any proxy statement distributed by, at the direction of,
or on behalf of, the directors. The chairman of a meeting of members shall,
if the facts so warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the
provisions of this Regulation 64 and, if he should so determine, he shall
so declare to the meeting and any such business not properly brought before
the meeting shall not be transacted. However, the notice requirements set
out in this Regulation 64 shall be deemed satisfied by a member if the
member has notified the
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Company of his intention to present a proposal at a meeting of members and
such member's proposal has been included in a proxy statement that has been
distributed by, at the direction of, or on behalf of, the directors to
solicit proxies for such meeting; provided that, if such member does not
appear or send a qualified representative, as determined by the chairman of
the meeting, to present such proposal at such meeting, the Company need not
present such proposal for a vote at such meeting, notwithstanding that
proxies in respect of such vote may have been received by the Company.
65. At every meeting of members, the Chairman of the Board of Directors shall
preside as chairman of the meeting. If there is no Chairman of the Board of
Directors or if the Chairman of the Board of Directors is not present at
the meeting, the chief executive officer shall be the chairman. In the
absence of the chief executive officer, such person as shall be selected by
the Board of Directors shall act as chairman of the meeting. The Chairman
of the Board of Directors, in addition to a deliberative vote as director,
shall cast the deciding vote in the event that any vote by the Board of
Directors requiring a majority vote for approval ends in a tie.
66. The chairman may, with the consent of the meeting, adjourn any meeting from
time to time, and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
67. At any meeting of the members the chairman shall be responsible for
deciding in such manner as he shall consider appropriate whether any
resolution has been carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes thereof. If the
chairman shall have any doubt as to the outcome of any resolution put to
the vote, he shall cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a poll then any member
present in person or by proxy who disputes the announcement by the chairman
of the result of any vote may immediately following such announcement
demand that a poll be taken and the chairman shall thereupon cause a poll
to be taken. If a poll is taken at any meeting, the result thereof shall be
duly recorded in the minutes of that meeting by the chairman.
68. Any person other than an individual shall be regarded as one member and
subject to the specific provisions hereinafter contained for the
appointment of representatives of such persons the right of any individual
to speak for or represent such member shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the directors may
in good faith seek legal advice from any qualified person and unless and
until a court of competent jurisdiction shall otherwise rule, the directors
may rely and act upon such advice without incurring any liability to any
member.
69. Any person other than an individual which is a member of the Company may by
resolution of its directors or other governing body authorize such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of members of the Company, and the person so authorized
shall be entitled to exercise the same powers on behalf of the person which
he represents as that person could exercise if it were an individual member
of the Company.
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70. The chairman of any meeting at which a vote is cast by proxy or on behalf
of any person other than an individual may call for a notarially certified
copy of such proxy or authority which shall be produced within seven days
of being so requested or the votes cast by such proxy or on behalf of such
person shall be disregarded.
71. Directors of the Company may attend and speak at any meeting of members of
the Company and at any separate meeting of the holders of any class or
series of shares in the Company.
72. No business shall be conducted at a meeting of members except in accordance
with Regulations 48 to 71.
NUMBER OF DIRECTORS AND SHARE QUALIFICATION
73. The number of directors shall be at least five and no greater than 15, as
determined from time to time by a resolution of directors.
74. The continuing directors may act, notwithstanding any casual vacancy in
their body, so long as there remain in office not less than the prescribed
minimum number of directors duly qualified to act, but if the number falls
below the prescribed minimum, the remaining directors shall not act except
for the purpose of filling such vacancy.
75. The shareholding qualification for directors may be fixed, and from time to
time varied, by a resolution of members and unless and until so fixed no
qualification shall be required. A director may be an individual or a
company.
APPOINTMENT AND RETIREMENT OF DIRECTORS
76. The term of each director shall expire at the next annual meeting of
members following such director's election. Retiring directors shall be
eligible for re-election. The first directors of the Company shall be
appointed by the subscribers to the Memorandum, and thereafter, they shall
be elected by the members to serve the term set forth in this Regulation
76.
77. Any vacancy on the Board of Directors resulting from death, resignation,
removal or other cause and any newly created directorship resulting from
any increase in the authorized number of directors between meetings of
members shall be filled only by the affirmative vote of a majority of all
the directors then in office (even if less than a quorum) and any director
so appointed shall hold office for the remainder of the annual term of the
directors and until a successor is duly elected or until his earlier death,
resignation or removal from office in accordance with these Articles or any
applicable law.
78. Nominations of persons for election to the Board of Directors shall be made
only at a meeting of members and only
a) by or at the direction of the directors; or
b) by a member entitled to vote for the election of directors who complies
with the notice procedures set out below.
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Such nominations, other than those made by or at the direction of the
directors, shall be made pursuant to timely notice in writing to the
Secretary. To be timely, a member's notice shall be delivered to or mailed
and received at the principal executive offices of the Company not less
than 30 days nor more than 60 days before the meeting, provided, however,
that if less than 40 days notice or prior public disclosure of the date of
the meeting is given or made to members, notice by the member to be timely
must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made. For the purposes of this
Regulation, any adjournment or postponement of the original meeting whereby
the meeting will reconvene within 30 days from the original date shall be
deemed for the purposes of this notice to be a continuation of the original
meeting and no nominations by a member of persons to be elected directors
may be made at any such reconvened meeting and no nominations by a member
of persons to be elected directors of the Company may be made at any such
reconvened meeting unless pursuant to a notice which was timely for the
meeting on the date originally scheduled. Each such notice shall set out
(i) the name and address of the member who intends to make the
nomination and of the persons to be nominated;
(ii) a representation that the member is a holder of record of shares
in the Company entitled to vote at such meeting and that he
intends to appear in person or by proxy at the meeting to
nominate the persons specified in the notice;
(iii) a description of all arrangements or understandings between the
member and each nominee and any other person (naming such
person) pursuant to which the nominations are to be made by the
member;
(iv) such other information regarding each nominee proposed by such
member as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the United States
Securities and Exchange Commission, had each nominee been
nominated, or intended to be nominated, by the directors;
(v) the consent of each nominee to serve as a director of the
Company if so elected; and
(vi) if the member intends to solicit proxies in support of such
member's nominees, a representation to that effect.
79. The chairman of the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the aforegoing procedure or if the
member solicits proxies in favor of such member's nominees without having
made the representation required by the immediately preceding sentence.
Only such persons as are nominated in accordance with the procedures set
out above shall be eligible to serve as directors of the Company. If at any
meeting of members at which an election of directors ought to take place,
the place of any retiring director is not filled, he shall, if willing,
continue in office until the dissolution of the annual meeting of
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members in the next year, and so on from year to year until his place is
filled, unless it shall be determined at such meeting not to fill such
vacancy.
80. The appointment of a director shall take effect upon compliance with the
requirements of the Act.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
81. Subject to the provisions of the Act, a director shall cease to hold office
as such only -
a) if he becomes insolvent, or assigns his estate for the benefit of his
creditors, or suspends payment or files a petition for the liquidation
of his affairs, or compounds generally with his creditors; or
b) if he becomes of unsound mind; or
c) if (unless he is not required to hold a share qualification) he has not
duly qualified himself within two months of his appointment or if he
ceases to hold the required number of shares to qualify him for office;
or
d) if he is absent from meetings of the directors for six consecutive
months without leave of the directors and is not represented at any
such meetings during such six consecutive months and the directors
resolve that the office be vacated by an alternative director, provided
that the directors shall have power to grant any director leave of
absence for any or an indefinite period; or
e) if he dies; or
f) one month or, with the permission of the directors earlier, after he
has given notice in writing of his intention to resign; or
g) if he shall, pursuant to the provisions of the Act, be disqualified or
cease to hold office or be prohibited from acting as director; or
h) if he is removed from office by a resolution signed by all the other
directors; or
i) if he is removed from office for cause by a resolution of members. For
the purposes hereof, `cause' means the willful and continuous failure
by a director to substantially perform his duties to the Company (other
than any such failure resulting from incapacity due to physical or
mental illness) or the willful engaging by the director in gross
misconduct materially and demonstrably injurious to the Company.
REGISTER OF DIRECTORS
82. The Company may determine by resolution of directors to keep a register of
directors containing
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a) the names and addresses of the persons who are directors of the
Company;
b) the date on which each person whose name is entered in the register was
appointed as a director of the Company; and
c) the date on which each person named as a director ceased to be a
director of the Company.
83. If the directors determine to maintain a register of directors, a copy
thereof shall be kept at the registered office of the Company and the
Company may determine by resolution of directors to register a copy of the
register with the Registrar of Companies.
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR
84. The directors may from time to time appoint one or more of their number to
be a chief executive officer, managing director, joint chief executive
officers or joint managing directors of the Company or to be the holder of
any other executive office in the Company, including, for the purposes of
these Articles, the office of chairman and may, subject to any contract
between him or them and the Company, from time to time terminate his or
their appointment and appoint another or others in his or their place or
places.
85. A director appointed in terms of the provisions of Regulation 84 to the
office of chief executive officer or managing director of the Company, or
to any other executive office in the Company, may be paid, in addition to
the remuneration payable in terms of Regulation 98 or 99, such remuneration
- not exceeding a reasonable maximum in each year - in respect of such
office as may be determined by a disinterested quorum of the directors.
86. The directors may from time to time entrust and confer upon a chief
executive officer, managing director or other executive officer for the
time being such of the powers and authorities vested in them as they think
fit.
POWERS OF DIRECTORS
87. The management of the business and the control of the Company shall be
vested in the directors who, in addition to the powers and authorities by
these Articles expressly conferred upon them, may exercise all such powers,
and do all such acts and things, as may be exercised or done by the Company
and are not hereby or by the Act expressly directed or required to be
exercised or done by meeting of members, but subject nevertheless to such
management and control not being inconsistent with these Articles or with
any resolution passed at any meeting of members, but no resolution of
members shall invalidate any prior act of the directors which would have
been valid if such resolution had not been passed. The general powers given
by this Regulation shall not be limited or restricted by any special
authority or power given to the directors by any other Regulation.
88. The directors may authorise authorize the payment of such donations by the
Company to such religious, charitable, public or other bodies, clubs, funds
or
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associations or persons as may seem to them advisable in the interests of
the Company.
89. Every officer or agent of the Company has such powers and authority of the
directors, including the power and authority to affix the Seal, as are set
out in these Articles or in the resolution of directors appointing the
officer or agent, except that no officer or agent has any power or
authority with respect to the matters requiring a resolution of directors
under the Act.
90. Any director which is a body corporate may appoint any person its duly
authorized representative for the purpose of representing it at meetings of
the Board of Directors or with respect to unanimous written consents.
91. The directors may by resolution of directors exercise all the powers of the
Company to borrow money and to mortgage or charge its undertakings and
property or any part thereof, to issue debentures, debenture stock and
other securities whenever money is borrowed or as security for any debt,
liability or obligation of the Company or of any third party.
92. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for moneys paid to the Company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as the
case may be, in such manner as shall from time to time be determined by
resolution of directors.
93. The Company may determine by resolution of directors to maintain at its
registered office a register of mortgages, charges and other encumbrances
in which there shall be entered the following particulars regarding each
mortgage, charge and other encumbrance:
a) the sum secured;
b) the assets secured;
c) the name and address of the mortgagee, chargee or other encumbrancer;
d) the date of creation of the mortgage, charge or other encumbrance; and
e) the date on which the particulars specified above in respect of the
mortgage, charge or other encumbrance are entered in the register.
94. The Company may further determine by a resolution of directors to register
a copy of the register of mortgages, charges or other encumbrances with the
Registrar of Companies.
95. The directors may, by resolution of directors, designate one or more
committees, each consisting of one or more directors.
96. Each committee of directors has such powers and authorities of the
directors, including the power and authority to affix the Seal, as are set
forth in the resolution of directors establishing the committee, except
that no committee has any power or
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authority to amend the Memorandum or these Articles, to appoint directors
or fix their emoluments, or to appoint officers or agents of the Company.
97. The meetings and proceedings of each committee of directors consisting of
two or more directors shall be governed mutatis mutandis by the provisions
of these Articles regulating the proceedings of directors so far as the
same are not superseded by any provisions in the resolution establishing
the committee.
REMUNERATION AND EXPENSES OF DIRECTORS
98. With the prior or subsequent approval by a resolution of members, the
directors may, by a resolution of directors, fix the emoluments of
directors with respect to services to be rendered in any capacity to the
Company.
99. The directors shall be paid all their travelling and other expenses
properly and necessarily incurred by them in and about the business of the
Company, and in attending meetings of the directors or of committees
thereof, and if any director shall be required to perform extra services or
otherwise shall be specially occupied about the Company's business, he
shall be entitled to receive a remuneration to be fixed by a disinterested
quorum of the directors which may be either in addition to or in
substitution for the remuneration provided for in Regulation 98.
PROCEEDINGS OF DIRECTORS
100. The directors of the Company or any committee thereof may meet at such
times and in such manner and places as the directors may determine to be
necessary or desirable.
101. A director shall be deemed to be present at a meeting of directors if he
participates by telephone or other electronic means and all directors
participating in the meeting are able to hear each other.
102. A director shall be given not less than three days notice of meetings of
directors, but a meeting of directors held without three days notice having
been given to all directors shall be valid if all the directors entitled to
vote at the meeting who do not attend, waive notice of the meeting and for
this purpose, the presence of a director at a meeting shall constitute
waiver on his part. The inadvertent failure to give notice of a meeting to
a director, or the fact that a director has not received the notice, does
not invalidate the meeting.
103. A director may by a written instrument appoint an alternate who need not be
a director and an alternate is entitled to attend meetings in the absence
of the director who appointed him and to vote or consent in place of the
director.
104. A meeting of directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by alternate not
less than one-half of the total number of directors, unless there are only
two directors in which case the quorum shall be two.
105. If the Company shall have only one director the provisions herein contained
for meetings of the directors shall not apply but such sole director shall
have full power
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to represent and act for the Company in all matters as are not by the Act
or the Memorandum or these Articles required to be exercised by the members
of the Company and in lieu of minutes of a meeting shall record in writing
and sign a note or memorandum of all matters requiring a resolution of
directors. Such a note or memorandum shall constitute sufficient evidence
of such resolution for all purposes.
106. At every meeting of the directors the Chairman of the Board of Directors
shall preside as chairman of the meeting. If there is no Chairman of the
Board of Directors or if the Chairman of the Board of Directors is not
present at the meeting the Vice-Chairman of the Board of Directors shall
preside. If there is no Vice-Chairman of the Board of Directors or if the
Vice-Chairman of the Board of Directors is not present at the meeting the
directors present shall choose some one of their number to be chairman of
the meeting.
107. Any action that may be taken by the directors or a committee of directors
at a meeting may also be taken by a resolution of directors or a committee
of directors consented to in writing or by telex, telegram, cable,
facsimile or other written electronic communication by three-quarters of
all directors or three-quarters of all members of the committee, as the
case may be, provided that a copy of the proposed resolution will have been
sent or delivered to all directors or all members of the committee, for
their consent. The consent may be in the form of counterparts, each
counterpart being signed by one or more directors.
108. Subject to the provisions of the Act, and provided that he has disclosed to
the directors the nature and extent of any material interest of his, a
director, notwithstanding his office -
a) may be a party to, or otherwise interested in, any transaction or
arrangement with the Company or in which the Company is otherwise
interested;
b) may be a director or other officer of, or employed by, or a party to
any transaction or arrangement with, or otherwise interested in, any
body corporate promoted by the Company or in which the Company is
otherwise interested; and
c) shall not, by reason of his office, be accountable to the Company for
any benefit which he derives from any such office or employment or from
any such transaction or arrangement or from any interest in any such
body corporate and no such transaction or arrangement shall be liable
to be avoided on the ground of any such interest or benefit.
109. For the purposes of Regulation 108 -
a) a general notice given to the directors that a director is to be
regarded as having an interest of the nature and extent specified in
the notice in any transaction or arrangement in which a specified
person or class of persons is interested shall be deemed to be a
disclosure that the director has an interest in any such transaction of
the nature and extent so specified; and
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b) an interest of which a director has no knowledge and of which it is
unreasonable to expect him to have knowledge shall not be treated as an
interest of his.
110. The directors shall cause the following corporate records to be kept:
a) minutes of all meetings of directors, members, committees of directors,
committees of officers and committees of members;
b) copies of all resolutions consented to by directors, members,
committees of directors, committees of officers and committees of
members; and
c) such other accounts and records as the directors by resolution of
directors consider necessary or desirable in order to reflect the
financial position of the Company.
111. The books, records and minutes shall be kept at the registered office of
the Company, its principal place of business or at such other place as the
directors determine.
OFFICERS
112. The Company may by resolution of directors appoint officers of the Company
at such times as shall be considered necessary or expedient. Such officers
may consist of a Chairman of the Board of Directors, a Vice-Chairman of the
Board of Directors, a Chief Executive Officer, Secretaries and Treasurers
and such other officers as may from time to time be deemed desirable. Any
number of offices may be held by the same person.
113. The officers shall perform such duties as shall be prescribed at the time
of their appointment subject to any modification in such duties as may be
prescribed thereafter by resolution of directors or resolution of members,
but in the absence of any specific allocation of duties it shall be the
responsibility of the Chairman of the Board of Directors to preside at
meetings of directors and members, the Vice-Chairman to act in the absence
of the Chairman, the Chief Executive Officer to manage the day to day
affairs of the Company, the Secretaries to maintain the share register,
minute books and records (other than financial records) of the Company and
to ensure compliance with all procedural requirements imposed on the
Company by applicable law, and the Treasurer to be responsible for the
financial affairs of the Company.
114. The emoluments of all officers shall be fixed by resolution of directors.
115. The officers of the Company shall hold office until their successors are
duly elected and qualified, but any officer elected or appointed by the
directors may be removed at any time, with or without cause, by resolution
of directors. Any vacancy occurring in any office of the Company may be
filled by resolution of directors.
LIMITATION OF LIABILITY
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116. To the full extent permitted by the Act or any other applicable laws
presently or hereafter in effect, no director of the Company shall be
personally liable to the Company or its members for or with respect to any
acts or omissions in the performance of his or her duties as a director of
the Company. Any repeal or modification of this Regulation 116 by a
resolution of members shall not adversely affect the right or protection of
a director of the Company existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification.
INDEMNIFICATION
117. Subject to the limitations hereinafter provided the Company may indemnify
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred in connection
with legal, administrative or investigative proceedings any person who
a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the person
is or was a director, an officer or a liquidator of the Company; or
b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was acting
for, another company or a partnership, joint venture, trust or other
enterprise.
118. The Company may only indemnify a person if the person acted honestly and in
good faith with a view to the best interests of the Company and, in the
case of criminal proceedings, the person had no reasonable cause to believe
that his conduct was unlawful.
119. The decision of the directors as to whether the person acted honestly and
in good faith and with a view to the best interests of the Company and as
to whether the person had no reasonable cause to believe that his conduct
was unlawful is, in the absence of fraud, sufficient for the purposes of
these Articles, unless a question of law is involved.
120. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself, create
a presumption that the person did not act honestly and in good faith and
with a view to the best interests of the Company or that the person had
reasonable cause to believe that his conduct was unlawful.
121. If a person to be indemnified has been successful in defence of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the person
in connection with the proceedings.
122. The Company may purchase and maintain insurance in relation to any person
who is or was a director, an officer or a liquidator of the Company, or who
at the request of the Company is or was serving as a director, an officer
or a liquidator of, or in any other capacity is or was acting for, another
company or a partnership, joint venture,
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trust or other enterprise, against any liability asserted against the
person and incurred by the person in that capacity, whether or not the
Company has or would have had the power to indemnify the person against the
liability as provided in these Articles.
SEAL
123. The Company may have more than one Seal and references herein to the Seal
shall be references to every Seal which shall have been duly adopted by
resolution of directors. The directors shall provide for the safe custody
of the Seal and for an imprint thereof to be kept at the Registered Office.
Except as otherwise expressly provided herein, the Seal when affixed to any
written instrument shall be witnessed and attested to by the signature of a
director or any other person so authorized from time to time by resolution
of directors. Such authorization may be before or after the Seal is
affixed, may be general or specific and may refer to any number of
sealings. The directors may provide for a facsimile of the Seal and of the
signature of any director or authorized person which may be reproduced by
printing or other means on any instrument and it shall have the same force
and validity as if the Seal had been affixed to such instrument and the
same had been signed as hereinbefore described.
DIVIDENDS
124. The Company may by a resolution of directors declare and pay dividends in
money, shares or other property, but dividends shall only be declared and
paid out of surplus. In the event that dividends are paid in specie, the
directors shall have responsibility for establishing and recording in the
resolution of directors authorizing the dividends, a fair and proper value
for the assets to be so distributed.
125. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the
Company.
126. The directors may, before declaring any dividend, set aside out of the
profits of the Company such sum as they think proper as a reserve fund, and
may invest the sum so set aside as a reserve fund upon such securities as
they may select.
127. No dividend shall be declared and paid unless the directors determine that
immediately after the payment of the dividend the Company will be able to
satisfy its liabilities as they become due in the ordinary course of its
business and the realizable value of the assets of the Company will not be
less than the sum of its total liabilities, other than deferred taxes, as
shown in its books of account, and its capital. In the absence of fraud,
the decision of the directors as to the realizable value of the assets of
the Company is conclusive, unless a question of law is involved.
128. Notice of any dividend that may have been declared shall be given to each
member in the manner hereinafter mentioned and all dividends unclaimed for
three years after having been declared may be forfeited by resolution of
directors for the benefit of the Company.
129. No dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares or shares held by another company of which
the Company holds,
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directly or indirectly, shares having more than 50 percent of the vote in
electing directors.
130. A share issued as a dividend by the Company shall be treated for all
purposes as having been issued for money equal to the surplus that is
transferred to capital upon the issue of the share.
131. In the case of a dividend of authorized but unissued shares with par value,
an amount equal to the aggregate par value of the shares shall be
transferred from surplus to capital at the time of the distribution.
132. In the case of a dividend of authorized but unissued shares without par
value, the amount designated by the directors shall be transferred from
surplus to capital at the time of the distribution, except that the
directors must designate as capital an amount that is at least equal to the
amount that the shares are entitled to as a preference, if any, in the
assets of the Company upon liquidation of the Company.
133. A division of the issued and outstanding shares of a class or series of
shares into a larger number of shares of the same class or series having a
proportionately smaller par value does not constitute a dividend of shares.
ACCOUNTS AND AUDIT
134. The Company may by resolution of members call for the directors to prepare
periodically a profit and loss account and a balance sheet. The profit and
loss account and balance sheet shall be drawn up so as to give respectively
a true and fair view of the profit and loss of the Company for the
financial period and a true and fair view of the state of affairs of the
Company as at the end of the financial period.
135. The Company may by resolution of members call for the accounts to be
examined by auditors.
136. The auditors of the Company shall be appointed by resolution of directors.
137. The auditors may be members of the Company but no director or other officer
shall be eligible to be an auditor of the Company during his continuance in
office.
138. The remuneration of the auditors of the Company
a) in the case of auditors appointed by the directors, may be fixed by
resolution of directors; and
b) subject to the foregoing, shall be fixed by resolution of members or in
such manner as the Company may by resolution of members determine.
139. The auditors shall examine each profit and loss account and balance sheet
required to be served on every member of the Company or laid before a
meeting of the members of the Company and shall state in a written report
whether or not
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a) in their opinion the profit and loss account and balance sheet give a
true and fair view respectively of the profit and loss for the period
covered by the accounts, and of the state of affairs of the Company at
the end of that period; and
b) all the information and explanations required by the auditors have been
obtained.
140. The report of the auditors shall be annexed to the accounts and shall be
read at the meeting of members at which the accounts are laid before the
Company or shall be served on the members.
141. Every auditor of the Company shall have a right of access at all times to
the books of account and vouchers of the Company, and shall be entitled to
require from the directors and officers of the Company such information and
explanations as he thinks necessary for the performance of the duties of
the auditors.
142. The auditors of the Company shall be entitled to receive notice of, and to
attend any meetings of members of the Company at which the Company's profit
and loss account and balance sheet are to be presented.
NOTICES
143. Any notice, information or written statement to be given by the Company to
members may be served in the case of members holding registered shares in
any way by which it can reasonably be expected to reach each member or by
mail addressed to each member at the address shown in the share register
and in the case of members holding shares issued to bearer, in the manner
provided in the Memorandum.
144. Any summons, notice, order, document, process, information or written
statement to be served on the Company may be served by leaving it, or by
sending it by registered mail addressed to the Company, at its registered
office, or by leaving it with, or by sending it by registered mail to, the
registered agent of the Company.
145. Service of any summons, notice, order, document, process, information or
written statement to be served on the Company may be proved by showing that
the summons, notice, order, document, process, information or written
statement was delivered to the registered office or the registered agent of
the Company or that it was mailed in such time as to admit to its being
delivered to the registered office or the registered agent of the Company
in the normal course of delivery within the period prescribed for service
and was correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
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146. The directors may establish and maintain or procure the establishment and
maintenance of any non-contributory or contributory pension or
superannuation funds for the benefit of, and give or procure the giving of
donations, gratuities, pensions, allowances or emoluments to, any persons
who are or were at any time in the employment or service of the Company or
any company which is a subsidiary of the Company or is allied to or
associated with the Company or with any such subsidiary, or who are or were
at any time directors or officers of the Company or of any such other
company as aforesaid or who hold or held any salaried employment or office
in the Company or such other company, or any persons in whose welfare the
Company or any such other company as aforesaid is or has been at any time
interested, and to the wives, widows, families and dependents of any such
person, and may make payments for or towards the insurance of any such
persons as aforesaid, and may do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid. Subject always
to the proposal being approved by resolution of members, a director holding
any such employment or office shall be entitled to participate in and
retain for his own benefit any such donation, gratuity, pension allowance
or emolument.
VOLUNTARY WINDING UP AND DISSOLUTION
147. The Company may voluntarily commence to wind up and dissolve by a
resolution of members but if the Company has never issued shares it may
voluntarily commence to wind up and dissolve by resolution of directors.
CONTINUATION
148. The Company may by resolution of members or by a resolution passed
unanimously by all directors of the Company continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands in the manner provided under those laws.
27
<PAGE>
We, the undersigned Registered Agent, subscribe our name to these Articles of
Association.
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NAME, ADDRESS AND DESCRIPTION OF SUBSCRIBER
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Havelet Trust Company (BVI) Limited
Abbott Building
P.O. Box 3186
Road Town, Tortola
British Virgin Islands
/s/ [ILLEGIBLE]
---------------------------------
Authorized Signatory
Registered Agent
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DATED this 30th day of September 1999
WITNESS to above signature:
/s/ N. Hull
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N. Hull
P.O. Box 3186
Road Town, Tortola
British Virgin Islands
[SEAL OF REGISTRAR OF
INTERNATIONAL BUSINESS COMPANIES]