UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES
EXCHANGE ACT OF 1934
For
the month of January 2024.
Commission
File Number 001-41774
Fitell
Corporation
(Translation
of registrant’s name into English)
23-25
Mangrove Lane
Taren
Point, NSW 2229
Australia
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F ☒ Form
40-F ☐
Results
of the January 8, 2024 Extraordinary General Meeting
Fitell
Corporation, a Cayman Islands company (the “Company”), held its extraordinary general meeting of the members of the
Company (the “Meeting”) on January 8, 2024, at 10:00 a.m. local time, at 23-25 Mangrove Lane, Taren Point 2229, New
South Wales, Australia. Holders of a total of 6,715,912 ordinary shares, out of a total of 11,120,000 ordinary shares issued and outstanding
and entitled to vote at the Meeting, voted and therefore constituting a quorum as of the record date of December 8, 2023. Each ordinary
share is entitled to one vote. The final voting results for each matter submitted to a vote of shareholders at the meeting are as follows:
To
ratify and approve as an ordinary resolution and with immediate effect upon passing, that (1) the Company is authorized to conduct a
private placement offering (the “Offering”), in reliance upon exemptions from registration requirements pursuant to
Section 4(a)(2) of the Securities Act of 1933, as amended, and/or Rule 506 of Regulation D and/or Regulation S promulgated by the Securities
and Exchange Commission, in a minimum amount of $3,000,000.00 and a maximum amount of $4,000,000.00 of certain 6% Senior Unsecured Convertible
Promissory Notes, with a 6% original issue discount (each a “Note” and collectively, the “Notes”),
convertible into the Company’s ordinary shares of US$0.0001 par value each (the “Ordinary Shares”) and to issue
to investors, as consideration for purchasing the Notes, a stock purchase warrant to purchase Ordinary Shares (the “Warrant”),
exercisable for a period of five (5) years, at an exercise price of 120% per share of the closing price of an Ordinary Share at of the
date of the purchase and issuance of the Notes; (2) the Company is authorized to enter into and execute a securities purchase agreement
with Investors identified on the signature page thereto (the “Securities Purchase Agreement”), in substantially the
form annexed to the Notice of Extraordinary General Meeting dated December 18, 2023 (“EGM Notice”); and that pursuant
to the Securities Purchase Agreement, the Company is authorized, empowered and directed to issue the Notes and the Warrant, both substantially
in a forms annexed to the EGM Notice, and (3) upon conversion of the Notes and exercise of the Warrants; the Company is authorized to
issue Ordinary Shares in the amount that may exceed 20% of the Company’s issued and outstanding share capital, it is understood
that such approval is required by the Nasdaq Marketplace Rule 5635(d); and (4) that the Notes, the Warrants, and the Ordinary Shares
issued upon conversion of the Notes and exercise of Warrants will be dully issued, fully paid, and non-assessable.
| For | |
Against | |
Abstain | |
Total |
| | |
| |
| |
|
| 6,714,338 | |
574 | |
1,000 | |
6,715,912 |
| 2. |
Amended and Restated
Memorandum and Articles of Association |
To
approve and adopt as a special resolution the Amended and Restated Memorandum and Articles of Association of the Company (the “Amended
M&AA”), filed hereto as Exhibit 99.1, in its entirety and in substitution for, and to the exclusion of, the existing memorandum
and articles of association of the Company with immediate effect, and that the registered office provider of the Company be and is hereby
authorized to make the necessary filings with the Registrar of Companies of the Cayman Islands in connection with the adoption of the
Amended M&AA.
| For | |
Against | |
Abstain | |
Total |
| | |
| |
| |
|
| 6,713,238 | |
2,674 | |
0 | |
6,715,912 |
The
information contained in this Report on Form 6-K and Exhibit 99.1 to this Report on Form 6-K shall not be deemed “filed”
for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any filing under the Securities
Act of 1933, as amended, unless expressly set forth by specific reference in such a filing.
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
| Date: January 9, 2024 |
FITELL CORPORATION |
| |
|
|
| |
By: |
/s/ Yinying
Lu |
| |
|
Yinying Lu |
| |
|
Chief Executive Officer and Director |
| |
|
(Principal Executive Officer) |
Exhibit
99.1
Appendix 4
Amended
and Restated Memorandum and Articles of Association.
Companies
Act (Revised)
Company
Limited by Shares
Fitell
Corporation
AMENDED
AND RESTATED
memorandum
AND ARTICLES of association
(adopted
by special resolutions passed on [8 January 2024])
Companies
Act (Revised)
Company
Limited by Shares
Fitell
Corporation
AMENDED
AND RESTATED
memorandum
of association
(adopted
by special resolutions passed on [8 January 2024])
Companies
Act (Revised)
Company
Limited by Shares
Amended
and Restated Memorandum of Association
of
Fitell
Corporation
(adopted
by special resolutions passed on [8 January 2024])
| 1 |
The
name of the Company is Fitell Corporation. |
| |
|
| 2 |
The
Company’s registered office will be situated at the office of Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand
Cayman, KY1-9009, Cayman Islands or at such other place in the Cayman Islands as the directors may at any time decide. |
| |
|
| 3 |
The
Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act (Revised), the Company has full power
and authority to carry out any object not prohibited by any law of the Cayman Islands. |
| |
|
| 4 |
The
Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by section 27 (2) of the Companies
Act (Revised), the Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of
any question of corporate benefit. |
| |
|
| 5 |
Nothing
in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely: |
| |
(a) |
the
business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Act (Revised); or |
| |
|
|
| |
(b) |
insurance
business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed
in that behalf under the Insurance Act (Revised);or |
| |
|
|
| |
(c) |
the
business of company management without being licensed in that behalf under the Companies Management Act (Revised). |
| 6 |
Unless
licensed to do so, the Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of
its business carried on outside the Cayman Islands. Despite this, the Company may effect and conclude contracts in the Cayman Islands
and exercise in the Cayman Islands any of its powers necessary for the carrying on of its business outside the Cayman Islands. |
| 7 |
The
Company is a company limited by shares and accordingly the liability of each member is limited to the amount (if any) unpaid on that
member’s shares. |
| |
|
| 8 |
The
share capital of the Company is USD50,000 divided into 500,000,000 Ordinary shares of par value USD0.0001 each. However, subject
to the Companies Act (Revised) and the Company’s articles of association, the Company has power to do any one or more of the
following: |
| |
(a) |
to
redeem or repurchase any of its shares; and |
| |
|
|
| |
(b) |
to
increase or reduce its capital; and |
| |
|
|
| |
(c) |
to
issue any part of its capital (whether original, redeemed, increased or reduced): |
| |
(i) |
with
or without any preferential, deferred, qualified or special rights, privileges or conditions; or |
| |
|
|
| |
(ii) |
subject
to any limitations or restrictions |
and
unless the condition of issue expressly declares otherwise, every issue of shares (whether declared to be ordinary, preference or otherwise)
is subject to this power; or
| |
(d) |
to
alter any of those rights, privileges, conditions, limitations or restrictions. |
| 9 |
The
Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside
the Cayman Islands and to be deregistered in the Cayman Islands. |
Companies
Act (Revised)
Company
Limited by Shares
Fitell
Corporation
AMENDED
AND RESTATED
ARTICLES
of association
(adopted
by special resolutions passed on [8 January 2024])
CONTENTS
| 1 Definitions,
interpretation and exclusion of Table A |
1 |
| Definitions |
1 |
| Interpretation |
3 |
| Exclusion
of Table A Articles |
4 |
| |
|
| 2 Shares |
4 |
| Power
to issue Shares and options, with or without special rights |
4 |
| Power
to issue fractions of a Share |
5 |
| Power
to pay commissions and brokerage fees |
5 |
| Trusts
not recognised |
5 |
| Power
to vary class rights |
5 |
| Effect
of new Share issue on existing class rights |
6 |
| Capital
contributions without issue of further Shares |
6 |
| No
bearer Shares or warrants |
6 |
| Treasury
Shares |
7 |
| Rights
attaching to Treasury Shares and related matters |
7 |
| Register
of Members |
7 |
| Annual
Return |
8 |
| |
|
| 3 Share
certificates |
8 |
| Issue
of share certificates |
8 |
| Renewal
of lost or damaged share certificates |
8 |
| |
|
| 4 Lien
on Shares |
9 |
| Nature
and scope of lien |
9 |
| Company
may sell Shares to satisfy lien |
9 |
| Authority
to execute instrument of transfer |
10 |
| Consequences
of sale of Shares to satisfy lien |
10 |
| Application
of proceeds of sale |
10 |
| |
|
| 5 Calls
on Shares and forfeiture |
11 |
| Power
to make calls and effect of calls |
11 |
| Time
when call made |
11 |
| Liability
of joint holders |
11 |
| Interest
on unpaid calls |
11 |
| Deemed
calls |
11 |
| Power
to accept early payment |
11 |
| Power
to make different arrangements at time of issue of Shares |
12 |
| Notice
of default |
12 |
| Forfeiture
or surrender of Shares |
12 |
| Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender |
12 |
| Effect
of forfeiture or surrender on former Member |
13 |
| Evidence
of forfeiture or surrender |
13 |
Sale
of forfeited or surrendered Shares
|
13 |
| 6 Transfer
of Shares |
14 |
| Form
of transfer |
14 |
| Power
to refuse registration for Shares not listed on a Designated Stock Exchange |
14 |
| Suspension
of transfers |
15 |
| Company
may retain instrument of transfer |
15 |
| Notice
of refusal to register |
15 |
| |
|
| 7 Transmission
of Shares |
15 |
| Persons
entitled on death of a Member |
15 |
| Registration
of transfer of a Share following death or bankruptcy |
15 |
| Indemnity |
16 |
| Rights
of person entitled to a Share following death or bankruptcy |
16 |
| |
|
| 8 Alteration
of capital |
16 |
| Increasing,
consolidating, converting, dividing and cancelling share capital |
16 |
| Dealing
with fractions resulting from consolidation of Shares |
17 |
| Reducing
share capital |
17 |
| |
|
| 9 Redemption
and purchase of own Shares |
17 |
| Power
to issue redeemable Shares and to purchase own Shares |
17 |
| Power
to pay for redemption or purchase in cash or in specie |
18 |
| Effect
of redemption or purchase of a Share |
18 |
| |
|
| 10 Meetings
of Members |
19 |
| Power
to call meetings |
19 |
| Content
of notice |
20 |
| Period
of notice |
20 |
| Persons
entitled to receive notice |
20 |
| Publication
of notice on a website |
20 |
| Time
a website notice is deemed to be given |
21 |
| Required
duration of publication on a website |
21 |
| Accidental
omission to give notice or non-receipt of notice |
21 |
| |
|
| 11 Proceedings
at meetings of Members |
21 |
| Quorum |
21 |
| Lack
of quorum |
22 |
| Use
of technology |
22 |
| Chairman |
22 |
| Right
of a director to attend and speak |
22 |
| Adjournment |
23 |
| Method
of voting |
23 |
| Outcome
of vote by show of hands |
23 |
| Withdrawal
of demand for a poll |
23 |
| Taking
of a poll |
23 |
| Chairman’s
casting vote |
24 |
| Amendments
to resolutions |
24 |
| Written
resolutions |
24 |
| Sole-member
company |
26 |
| |
|
| 12 Voting
rights of Members |
26 |
| Right
to vote |
26 |
| Rights
of joint holders |
27 |
| Representation
of corporate Members |
27 |
| Member
with mental disorder |
27 |
| Objections
to admissibility of votes |
28 |
| Form
of proxy |
28 |
| How
and when proxy is to be delivered |
28 |
| Voting
by proxy |
29 |
| |
|
| 13 Number
of directors |
30 |
| |
|
| 14 Appointment,
disqualification and removal of directors |
30 |
| First
directors |
30 |
| No
age limit |
30 |
| Corporate
directors |
30 |
| No
shareholding qualification |
30 |
| Appointment
of directors |
30 |
| Removal
of directors |
31 |
| Resignation
of directors |
31 |
| Termination
of the office of director |
31 |
| |
|
| 15 Alternate
directors |
32 |
| Appointment
and removal |
32 |
| Notices |
33 |
| Rights
of alternate director |
33 |
| Appointment
ceases when the appointor ceases to be a director |
33 |
| Status
of alternate director |
34 |
| Status
of the director making the appointment |
34 |
| |
|
| 16 Powers
of directors |
34 |
| Powers
of directors |
34 |
| Appointments
to office |
34 |
| Remuneration |
35 |
| Disclosure
of information |
35 |
| |
|
| 17 Delegation
of powers |
36 |
| Power
to delegate any of the directors’ powers to a committee |
36 |
| Power
to appoint an agent of the Company |
36 |
| Power
to appoint an attorney or authorised signatory of the Company |
36 |
| Power
to appoint a proxy |
37 |
| 18
Meetings of directors |
37 |
| Regulation
of directors’ meetings |
37 |
| Calling
meetings |
37 |
| Notice
of meetings |
37 |
| Period
of notice |
37 |
| Use
of technology |
38 |
| Place
of meetings |
38 |
| Quorum |
38 |
| Voting |
38 |
| Validity |
38 |
| Recording
of dissent |
38 |
| Written
resolutions |
39 |
| Sole
director’s minute |
39 |
| |
|
| 19 Permissible
directors’ interests and disclosure |
39 |
| Permissible
interests subject to disclosure |
39 |
| Notification
of interests |
40 |
| Voting
where a director is interested in a matter |
40 |
| |
|
| 20 Minutes |
40 |
| |
|
| 21 Accounts
and audit |
41 |
| Accounting
and other records |
41 |
| No
automatic right of inspection |
41 |
| Sending
of accounts and reports |
41 |
| Time
of receipt if documents are published on a website |
41 |
| Validity
despite accidental error in publication on website |
42 |
| When
accounts are to be audited |
42 |
| |
|
| 22 Financial
year |
42 |
| |
|
| 23 Record
dates |
42 |
| |
|
| 24 Dividends |
42 |
| Declaration
of dividends by Members |
42 |
| Payment
of interim dividends and declaration of final dividends by directors |
43 |
| Apportionment
of dividends |
43 |
| Right
of set off |
44 |
| Power
to pay other than in cash |
44 |
| How
payments may be made |
44 |
| Dividends
or other moneys not to bear interest in absence of special rights |
45 |
| Dividends
unable to be paid or unclaimed |
45 |
| |
|
| 25 Capitalisation
of profits |
45 |
| Capitalisation
of profits or of any share premium account or capital redemption reserve |
45 |
| Applying
an amount for the benefit of members |
46 |
| 26 Share
premium account |
46 |
| Directors
to maintain share premium account |
46 |
| Debits
to share premium account |
46 |
| |
|
| 27 Seal |
46 |
| Company
seal |
46 |
| Duplicate
seal |
47 |
| When
and how seal is to be used |
47 |
| If
no seal is adopted or used |
47 |
| Power
to allow non-manual signatures and facsimile printing of seal |
47 |
| Validity
of execution |
47 |
| |
|
| 28 Indemnity |
48 |
| Indemnity |
48 |
| Release |
48 |
| Insurance |
49 |
| |
|
| 29 Notices |
49 |
| Form
of notices |
49 |
| Electronic
communications |
49 |
| Persons
authorised to give notices |
50 |
| Delivery
of written notices |
50 |
| Joint
holders |
50 |
| Signatures |
50 |
| Evidence
of transmission |
50 |
| Giving
notice to a deceased or bankrupt Member |
51 |
| Date
of giving notices |
51 |
| Saving
provision |
51 |
| |
|
| 30 Authentication
of Electronic Records |
51 |
| Application
of Articles |
51 |
| Authentication
of documents sent by Members by Electronic means |
52 |
| Authentication
of document sent by the Secretary or Officers of the Company by Electronic means |
52 |
| Manner
of signing |
53 |
| Saving
provision |
53 |
| |
|
| 31 Transfer
by way of continuation |
53 |
| |
|
| 32 Winding
up |
54 |
| Distribution
of assets in specie |
54 |
| No
obligation to accept liability |
54 |
| The
directors are authorised to present a winding up petition |
54 |
| |
|
| 33 Amendment
of Memorandum and Articles |
54 |
| Power
to change name or amend Memorandum |
54 |
| Power
to amend these Articles |
54 |
Companies
Act (Revised)
Company
Limited by Shares
Amended
and Restated Articles of Association
of
Fitell
Corporation
(adopted
by special resolutions dated [8 January 2024])
| 1 |
Definitions,
interpretation and exclusion of Table A |
Definitions
| 1.1 |
In
these Articles, the following definitions apply: |
Act
means the Companies Act (Revised) of the Cayman Islands.
Articles
means, as appropriate:
| |
(a) |
these
Articles of Association as amended from time to time: or |
| |
|
|
| |
(b) |
two
or more particular Articles of these Articles; |
and
Article refers to a particular Article of these Articles.
Business
Day means a day other than a public holiday in the place where the Company’s registered office is located, a Saturday or a
Sunday.
Clear
Days, in relation to a period of notice, means that period excluding:
| |
(a) |
the
day when the notice is given or deemed to be given; and |
| |
|
|
| |
(b) |
the
day for which it is given or on which it is to take effect. |
Company
means the above-named company.
Default
Rate means 10% (ten per cent) per annum.
Designated
Stock Exchanges means the NASDAQ Stock Market LLC in the United States of America for so long as the Shares are there listed and
any other stock exchange on which the Shares are listed for trading;
Designated
Stock Exchange Rules means the relevant code, rules and regulations, as amended, from time to time, applicable as a result of the
original and continued listing of any Shares on the Designated Stock Exchanges.
Electronic
has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands.
Electronic
Communication Facilities means video, video-conferencing, internet or online conferencing applications, telephone or tele-conferencing
and/or any other video-communications, internet or online conferencing application or telecommunications facilities by means of which
all persons participating in a meeting are capable of hearing and being heard by each other.
Electronic
Record has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands.
Electronic
Signature has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands.
Fully
Paid and Paid Up:
| |
(a) |
in
relation to a Share with par value, means that the par value for that Share and any premium payable in respect of the issue of that
Share, has been fully paid or credited as paid in money or money’s worth; |
| |
|
|
| |
(b) |
in
relation to a Share without par value, means that the agreed issue price for that Share has been fully paid or credited as paid in
money or money’s worth. |
Member
means any person or persons entered on the register of members from time to time as the holder of a Share.
Memorandum
means the Memorandum of Association of the Company as amended from time to time.
Officer
means a person appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator,
but does not include the Secretary.
Ordinary
Resolution means a resolution of a duly constituted general meeting of the Company passed by a simple majority of the votes cast
by, or on behalf of, the Members entitled to vote. The expression also includes a written resolution passed by the requisite majority
in accordance with Article 11.21.
Secretary
means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.
Share
means a share in the share capital of the Company; and the expression:
| |
(a) |
includes
stock (except where a distinction between shares and stock is expressed or implied); and |
| |
|
|
| |
(b) |
where
the context permits, also includes a fraction of a share. |
Special
Resolution has the meaning given to that term in the Act; and the expression includes a unanimous written resolution.
Treasury
Shares means Shares of the Company held in treasury pursuant to the Act and Article 2.12.
Virtual
Meeting means any general meeting of the Members at which the Members (and any other permitted participants of such meeting, including
without limitation the chairman of the meeting and any Directors) are permitted to attend and participate solely by means of Electronic
Communication Facilities.
Interpretation
| 1.2 |
In
the interpretation of these Articles, the following provisions apply unless the context otherwise requires: |
| |
(a) |
A
reference in these Articles to a statute is a reference to a statute of the Cayman Islands as known by its short title, and includes: |
| |
(i) |
any
statutory modification, amendment or re-enactment; and |
| |
|
|
| |
(ii) |
any
subordinate legislation or regulations issued under that statute. |
Without
limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of
that Act in force from time to time as amended from time to time.
| |
(b) |
Headings
are inserted for convenience only and do not affect the interpretation of these Articles, unless there is ambiguity. |
| |
|
|
| |
(c) |
If
a day on which any act, matter or thing is to be done under these Articles is not a Business Day, the act, matter or thing must be
done on the next Business Day. |
| |
|
|
| |
(d) |
A
word which denotes the singular also denotes the plural, a word which denotes the plural also denotes the singular, and a reference
to any gender also denotes the other genders. |
| |
|
|
| |
(e) |
A
reference to a person includes, as appropriate, a company, trust, partnership, joint venture, association, body corporate
or government agency. |
| |
(f) |
Where
a word or phrase is given a defined meaning another part of speech or grammatical form in respect to that word or phrase has a corresponding
meaning. |
| |
|
|
| |
(g) |
All
references to time are to be calculated by reference to time in the place where the Company’s registered office is located. |
| |
|
|
| |
(h) |
The
words written and in writing include all modes of representing or reproducing words in a visible form, but do not include
an Electronic Record where the distinction between a document in writing and an Electronic Record is expressed or implied. |
| |
|
|
| |
(i) |
The
words including, include and in particular or any similar expression are to be construed without limitation. |
| |
|
|
| |
(j) |
The
term “present” means, in respect of any person attending a meeting, such person’s presence at a general
meeting of Members (or any meeting of the holders of any class of Shares), which may be satisfied by means of such person or, if
a corporation or other non-natural person, its duly authorized representative (or, in the case of any Member, a proxy which has been
validly appointed by such Member in accordance with these Articles), being: (a) physically present at the meeting; or (b) in the
case of any meeting at which Electronic Communication Facilities are permitted in accordance with these Articles, including any Virtual
Meeting, connected by means of the use of such Electronic Communication Facilities. |
Exclusion
of Table A Articles
| 1.3 |
The
regulations contained in Table A in the First Schedule of the Act and any other regulations contained in any statute or subordinate
legislation are expressly excluded and do not apply to the Company. |
Power
to issue Shares and options, with or without special rights
| 2.1 |
Subject
to the provisions of the Act and the Articles about the redemption and purchase of the Company’s own Shares, the directors
have general and unconditional authority to allot (with or without confirming rights of renunciation), grant options over or otherwise
deal with any unissued Shares of the Company to such persons, at such times and on such terms and conditions as they may decide.
No Share may be issued at a discount except in accordance with the provisions of the Act. |
| |
|
| 2.2 |
Without
limitation to the preceding Article, the directors may so deal with the unissued Shares of the Company: |
| |
(a) |
either
at a premium or at par; |
| |
(b) |
with
or without preferred, deferred or other special rights or restrictions whether in regard to dividend, voting, return of capital or
otherwise. |
Power
to issue fractions of a Share
| 2.3 |
Subject
to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share shall be subject to and carry the corresponding
fraction of liabilities (whether with respect to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions,
rights and other attributes of a Share of that class of Shares. |
Power
to pay commissions and brokerage fees
| 2.4 |
The
Company may pay a commission to any person in consideration of that person: |
| |
(a) |
subscribing
or agreeing to subscribe, whether absolutely or conditionally; or |
| |
|
|
| |
(b) |
procuring
or agreeing to procure subscriptions, whether absolute or conditional |
for
any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares
or partly in one way and partly in another.
| 2.5 |
The
Company may employ a broker in the issue of its capital and pay him any proper commission or brokerage. |
Trusts
not recognised
| 2.6 |
Except
as required by law: |
| |
(a) |
no
person shall be recognised by the Company as holding any Share on any trust; and |
| |
|
|
| |
(b) |
no
person other than the Member shall be recognised by the Company as having any right in a Share. |
Power
to vary class rights
| 2.7 |
If
the share capital is divided into different classes of Shares then, unless the terms on which a class of Shares was issued state
otherwise, the rights attaching to a class of Shares may only be varied if one of the following applies: |
| |
(a) |
the
Members holding two thirds of the issued Shares of that class consent in writing to the variation; or |
| |
|
|
| |
(b) |
the
variation is made with the sanction of a Special Resolution passed at a separate general meeting of the Members holding the issued
Shares of that class. |
| 2.8 |
For
the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles relating to general meetings apply, mutatis
mutandis, to every such separate meeting except that: |
| |
(a) |
the
necessary quorum shall be one or more persons holding, or representing by proxy, not less than one third of the issued Shares of
the class; and |
| |
|
|
| |
(b) |
any
Member holding issued Shares of the class, present in person or by proxy or, in the case of a corporate Member, by its duly authorised
representative, at the meeting may demand a poll. |
Effect
of new Share issue on existing class rights
| 2.9 |
Unless
the terms on which a class of Shares was issued state otherwise, the rights conferred on the Member holding Shares of any class shall
not be deemed to be varied by the creation or issue of further Shares ranking pari passu with the existing Shares of that class. |
Capital
contributions without issue of further Shares
| 2.10 |
With
the consent of a Member, the directors may accept a voluntary contribution to the capital of the Company from that Member without
issuing Shares in consideration for that contribution. In that event, the contribution shall be dealt with in the following manner: |
| |
(a) |
It
shall be treated as if it were a share premium. |
| |
|
|
| |
(b) |
Unless
the Member agrees otherwise: |
| |
(i) |
if
the Member holds Shares in a single class of Shares - it shall be credited to the share premium account for that class of Shares; |
| |
|
|
| |
(ii) |
if
the Member holds Shares of more than one class - it shall be credited rateably to the share premium accounts for those classes of
Shares (in the proportion that the sum of the issue prices for each class of Shares that the Member holds bears to the total issue
prices for all classes of Shares that the Member holds). |
| |
(c) |
It
shall be subject to the provisions of the Act and these Articles applicable to share premiums. |
No
bearer Shares or warrants
| 2.11 |
The
Company shall not issue Shares or warrants to bearers. |
Treasury
Shares
| 2.12 |
Shares
that the Company purchases, redeems or acquires by way of surrender in accordance with the Act shall be held as Treasury Shares and
not treated as cancelled if: |
| |
(a) |
the
directors so determine prior to the purchase, redemption or surrender of those shares; and |
| |
|
|
| |
(b) |
the
relevant provisions of the Memorandum and Articles and the Act are otherwise complied with. |
Rights
attaching to Treasury Shares and related matters
| 2.13 |
No
dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including
any distribution of assets to members on a winding up) may be made to the Company in respect of a Treasury Share. |
| |
|
| 2.14 |
The
Company shall be entered in the Register as the holder of the Treasury Shares. However: |
| |
(a) |
the
Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and
any purported exercise of such a right shall be void; |
| |
|
|
| |
(b) |
a
Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining
the total number of issued shares at any given time, whether for the purposes of these Articles or the Act. |
| 2.15 |
Nothing
in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect of a Treasury Share and Shares allotted
as fully paid bonus shares in respect of a Treasury Share shall be treated as Treasury Shares. |
| |
|
| 2.16 |
Treasury
Shares may be disposed of by the Company in accordance with the Act and otherwise on such terms and conditions as the directors determine. |
Register
of Members
| 2.17 |
The
Directors shall keep or cause to be kept a register of Members as required by the Act and may cause the Company to maintain one or
more branch registers as contemplated by the Act, provided that where the Company is maintaining one or more branch registers, the
Directors shall ensure that a duplicate of each branch register is kept with the Company’s principal register of Members and
updated within such number of days of any amendment having been made to such branch register as may be required by the Act. |
| 2.18 |
The
title to Shares listed on a Designated Stock Exchange may be evidenced and transferred in accordance with the laws applicable to
the rules and regulations of the Designated Stock Exchange and, for these purposes, the register of Members may be maintained in
accordance with section 40B of the Act. |
Annual
Return
| 2.19 |
The
Directors in each calendar year shall prepare or cause to be prepared an annual return and declaration setting forth the particulars
required by the Act and shall deliver a copy thereof to the registrar of companies for the Cayman Islands. |
Issue
of share certificates
| 3.1 |
A
Member shall only be entitled to a share certificate if the directors resolve that share certificates shall be issued. Share certificates
representing Shares, if any, shall be in such form as the directors may determine. If the directors resolve that share certificates
shall be issued, upon being entered in the register of Members as the holder of a Share, the directors may issue to any Member: |
| |
(a) |
without
payment, one certificate for all the Shares of each class held by that Member (and, upon transferring a part of the Member’s
holding of Shares of any class, to a certificate for the balance of that holding); and |
| |
|
|
| |
(b) |
upon
payment of such reasonable sum as the directors may determine for every certificate after the first, several certificates each for
one or more of that Member’s Shares. |
| 3.2 |
Every
certificate shall specify the number, class and distinguishing numbers (if any) of the Shares to which it relates and whether they
are Fully Paid or partly paid up. A certificate may be executed under seal or executed in such other manner as the directors determine. |
| |
|
| 3.3 |
The
Company shall not be bound to issue more than one certificate for Shares held jointly by several persons and delivery of a certificate
for a Share to one joint holder shall be a sufficient delivery to all of them. |
Renewal
of lost or damaged share certificates
| 3.4 |
If
a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to: |
| |
(b) |
indemnity; |
| |
|
|
| |
(c) |
payment
of the expenses reasonably incurred by the Company in investigating the evidence; and |
| |
|
|
| |
(d) |
payment
of a reasonable fee, if any, for issuing a replacement share certificate |
| |
as
the directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate. |
Nature
and scope of lien
| 4.1 |
The
Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered in the name of a Member (whether solely
or jointly with others). The lien is for all moneys payable to the Company by the Member or the Member’s estate: |
| |
(a) |
either
alone or jointly with any other person, whether or not that other person is a Member; and |
| |
|
|
| |
(b) |
whether
or not those moneys are presently payable. |
| 4.2 |
At
any time the directors may declare any Share to be wholly or partly exempt from the provisions of this Article. |
Company
may sell Shares to satisfy lien
| 4.3 |
The
Company may sell any Shares over which it has a lien if all of the following conditions are met: |
| |
(a) |
the
sum in respect of which the lien exists is presently payable; |
| |
|
|
| |
(b) |
the
Company gives notice to the Member holding the Share (or to the person entitled to it in consequence of the death or bankruptcy of
that Member) demanding payment and stating that if the notice is not complied with the Shares may be sold; and |
| |
|
|
| |
(c) |
that
sum is not paid within 14 Clear Days after that notice is deemed to be given under these Articles. |
| 4.4 |
The
Shares may be sold in such manner as the directors determine. |
| |
|
| 4.5 |
To
the maximum extent permitted by law, the directors shall incur no personal liability to the Member concerned in respect of the sale. |
Authority
to execute instrument of transfer
| 4.6 |
To
give effect to a sale, the directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance
with the directions of, the purchaser. The title of the transferee of the Shares shall not be affected by any irregularity or invalidity
in the proceedings in respect of the sale. |
Consequences
of sale of Shares to satisfy lien
| 4.7 |
On
sale pursuant to the preceding Articles: |
| |
(a) |
the
name of the Member concerned shall be removed from the register of members as the holder of those Shares; and |
| |
|
|
| |
(b) |
that
person shall deliver to the Company for cancellation the certificate for those Shares. |
Despite
this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the
Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment
at the rate at which interest was payable before that sale or, failing that, at the Default Rate. The directors may waive payment wholly
or in part or enforce payment without any allowance for the value of the Shares at the time of sale or for any consideration received
on their disposal.
Application
of proceeds of sale
| 4.8 |
The
net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists
as is presently payable. Any residue shall be paid to the person whose Shares have been sold: |
| |
(a) |
if
no certificate for the Shares was issued, at the date of the sale; or |
| |
|
|
| |
(b) |
if
a certificate for the Shares was issued, upon surrender to the Company of that certificate for cancellation |
but,
in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale.
| 5 | Calls
on Shares and forfeiture |
Power
to make calls and effect of calls
| 5.1 |
Subject
to the terms of allotment, the directors may make calls on the Members in respect of any moneys unpaid on their Shares including
any premium. The call may provide for payment to be by instalments. Subject to receiving at least 14 Clear Days’ notice specifying
when and where payment is to be made, each Member shall pay to the Company the amount called on his Shares as required by the notice. |
| |
|
| 5.2 |
Before
receipt by the Company of any sum due under a call, that call may be revoked in whole or in part and payment of a call may be postponed
in whole or in part. Where a call is to be paid in instalments, the Company may revoke the call in respect of all or any remaining
instalments in whole or in part and may postpone payment of all or any of the remaining instalments in whole or in part. |
| |
|
| 5.3 |
A
Member on whom a call is made shall remain liable for that call notwithstanding the subsequent transfer of the Shares in respect
of which the call was made. He shall not be liable for calls made after he is no longer registered as Member in respect of those
Shares. |
Time
when call made
| 5.4 |
A
call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed. |
Liability
of joint holders
| 5.5 |
Members
registered as the joint holders of a Share shall be jointly and severally liable to pay all calls in respect of the Share. |
Interest
on unpaid calls
| 5.6 |
If
a call remains unpaid after it has become due and payable the person from whom it is due and payable shall pay interest on the amount
unpaid from the day it became due and payable until it is paid: |
| |
(a) |
at
the rate fixed by the terms of allotment of the Share or in the notice of the call; or |
| |
|
|
| |
(b) |
if
no rate is fixed, at the Default Rate. |
The
directors may waive payment of the interest wholly or in part.
Deemed
calls
| 5.7 |
Any
amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise, shall be deemed to be payable as a call.
If the amount is not paid when due the provisions of these Articles shall apply as if the amount had become due and payable by virtue
of a call. |
Power
to accept early payment
| 5.8 |
The
Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares held by him although no part of that
amount has been called up. |
Power
to make different arrangements at time of issue of Shares
| 5.9 |
Subject
to the terms of allotment, the directors may make arrangements on the issue of Shares to distinguish between Members in the amounts
and times of payment of calls on their Shares. |
Notice
of default
| 5.10 |
If
a call remains unpaid after it has become due and payable the directors may give to the person from whom it is due not less than
14 Clear Days’ notice requiring payment of: |
| |
(a) |
the
amount unpaid; |
| |
|
|
| |
(b) |
any
interest which may have accrued; |
| |
|
|
| |
(c) |
any
expenses which have been incurred by the Company due to that person’s default. |
| 5.11 |
The
notice shall state the following: |
| |
(a) |
the
place where payment is to be made; and |
| |
|
|
| |
(b) |
a
warning that if the notice is not complied with the Shares in respect of which the call is made will be liable to be forfeited. |
Forfeiture
or surrender of Shares
| 5.12 |
If
the notice under the preceding Article is not complied with, the directors may, before the payment required by the notice has been
received, resolve that any Share the subject of that notice be forfeited. The forfeiture shall include all dividends or other moneys
payable in respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing, the directors may determine
that any Share the subject of that notice be accepted by the Company as surrendered by the Member holding that Share in lieu of forfeiture. |
Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender
| 5.13 |
A
forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the directors
determine either to the former Member who held that Share or to any other person. The forfeiture or surrender may be cancelled on
such terms as the directors think fit at any time before a sale, re-allotment or other disposition. Where, for the purposes of its
disposal, a forfeited or surrendered Share is to be transferred to any person, the directors may authorise some person to execute
an instrument of transfer of the Share to the transferee. |
Effect
of forfeiture or surrender on former Member
| 5.14 |
On
forfeiture or surrender: |
| |
(a) |
the
name of the Member concerned shall be removed from the register of members as the holder of those Shares and that person shall cease
to be a Member in respect of those Shares; and |
| |
|
|
| |
(b) |
that
person shall surrender to the Company for cancellation the certificate (if any) for the forfeited or surrendered Shares. |
| 5.15 |
Despite
the forfeiture or surrender of his Shares, that person shall remain liable to the Company for all moneys which at the date of forfeiture
or surrender were presently payable by him to the Company in respect of those Shares together with: |
| |
(a) |
all
expenses; and |
| |
|
|
| |
(b) |
interest
from the date of forfeiture or surrender until payment: |
| |
(i) |
at
the rate of which interest was payable on those moneys before forfeiture; or |
| |
|
|
| |
(ii) |
if
no interest was so payable, at the Default Rate. |
The
directors, however, may waive payment wholly or in part.
Evidence
of forfeiture or surrender
| 5.16 |
A
declaration, whether statutory or under oath, made by a director or the Secretary shall be conclusive evidence of the following matters
stated in it as against all persons claiming to be entitled to forfeited Shares: |
| |
(a) |
that
the person making the declaration is a director or Secretary of the Company, and |
| |
|
|
| |
(b) |
that
the particular Shares have been forfeited or surrendered on a particular date. |
Subject
to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale
of forfeited or surrendered Shares
| 5.17 |
Any
person to whom the forfeited or surrendered Shares are disposed of shall not be bound to see to the application of the consideration,
if any, of those Shares nor shall his title to the Shares be affected by any irregularity in, or invalidity of the proceedings in
respect of, the forfeiture, surrender or disposal of those Shares. |
Form
of transfer
| 6.1 |
Subject
to the following Articles about the transfer of Shares, and provided that such transfer complies with applicable rules of the Designated
Stock Exchange, a Member may transfer Shares to another person by completing an instrument of transfer, in a common form or in a
form prescribed by the Designated Stock Exchange or in a form approved by the directors, executed: |
| |
(a) |
where
the Shares are Fully Paid, by or on behalf of that Member; and |
| |
|
|
| |
(b) |
where
the Shares are partly paid, by or on behalf of that Member and the transferee. |
| 6.2 |
The
transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered into the register of Members. |
Power
to refuse registration for Shares not listed on a Designated Stock Exchange
| 6.3 |
Where
the Shares in question are not listed on or subject to the rules of any Designated Stock Exchange, the directors may in their absolute
discretion decline to register any transfer of such Shares which are not Fully Paid Up or on which the Company has a lien. The directors
may also, but are not required to, decline to register any transfer of any such Share unless: |
| |
(a) |
the
instrument of transfer is lodged with the Company, accompanied by the certificate (if any) for the Shares to which it relates and
such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer; |
| |
|
|
| |
(b) |
the
instrument of transfer is in respect of only one class of Shares; |
| |
|
|
| |
(c) |
the
instrument of transfer is properly stamped, if required; |
| |
|
|
| |
(d) |
in
the case of a transfer to joint holders, the number of joint holders to whom the Share is to be transferred does not exceed four; |
| |
|
|
| |
(e) |
the
Shares transferred are Fully Paid Up and free of any lien in favour of the Company; and |
| |
|
|
| |
(f) |
any
applicable fee of such maximum sum as the Designated Stock Exchanges may determine to be payable, or such lesser sum as the Board
may from time to time require, related to the transfer is paid to the Company. |
Suspension
of transfers
| 6.4 |
The
registration of transfers may, on 14 days’ notice being given by advertisement in such one or more newspapers or by Electronic
means, be suspended and the register of Members closed at such times and for such periods as the directors may, in their absolute
discretion, from time to time determine, provided always that such registration of transfer shall not be suspended nor the register
of Members closed for more than 30 days in any year. |
Company
may retain instrument of transfer
| 6.5 |
All
instruments of transfer that are registered shall be retained by the Company. |
Notice
of refusal to register
| 6.6 |
If
the directors refuse to register a transfer of any Shares not listed on a Designated Stock Exchange, they shall within one month
after the date on which the instrument of transfer was lodged with the Company send to each of the transferor and the transferee
notice of the refusal. |
Persons
entitled on death of a Member
| 7.1 |
If
a Member dies, the only persons recognised by the Company as having any title to the deceased Members’ interest are the following: |
| |
(a) |
where
the deceased Member was a joint holder, the survivor or survivors; and |
| |
|
|
| |
(b) |
where
the deceased Member was a sole holder, that Member’s personal representative or representatives. |
| 7.2 |
Nothing
in these Articles shall release the deceased Member’s estate from any liability in respect of any Share, whether the deceased
was a sole holder or a joint holder. |
Registration
of transfer of a Share following death or bankruptcy
| 7.3 |
A
person becoming entitled to a Share in consequence of the death or bankruptcy of a Member may elect to do either of the following: |
| |
(a) |
to
become the holder of the Share; or |
| |
|
|
| |
(b) |
to
transfer the Share to another person. |
| 7.4 |
That
person must produce such evidence of his entitlement as the directors may properly require. |
| 7.5 |
If
the person elects to become the holder of the Share, he must give notice to the Company to that effect. For the purposes of these
Articles, that notice shall be treated as though it were an executed instrument of transfer. |
| |
|
| 7.6 |
If
the person elects to transfer the Share to another person then: |
| |
(a) |
if
the Share is Fully Paid, the transferor must execute an instrument of transfer; and |
| |
|
|
| |
(b) |
if
the Share is partly paid, the transferor and the transferee must execute an instrument of transfer. |
| 7.7 |
All
the Articles relating to the transfer of Shares shall apply to the notice or, as appropriate, the instrument of transfer. |
Indemnity
| 7.8 |
A
person registered as a Member by reason of the death or bankruptcy of another Member shall indemnify the Company and the directors
against any loss or damage suffered by the Company or the directors as a result of that registration. |
Rights
of person entitled to a Share following death or bankruptcy
| 7.9 |
A
person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled
if he were registered as the holder of the Share. But, until he is registered as Member in respect of the Share, he shall not be
entitled to attend or vote at any meeting of the Company or at any separate meeting of the holders of that class of Shares in the
Company. |
Increasing,
consolidating, converting, dividing and cancelling share capital
| 8.1 |
To
the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of the following and amend its Memorandum
for that purpose: |
| |
(a) |
increase
its share capital by new Shares of the amount fixed by that Ordinary Resolution and with the attached rights, priorities and privileges
set out in that Ordinary Resolution; |
| |
|
|
| |
(b) |
consolidate
and divide all or any of its share capital into Shares of larger amount than its existing Shares; |
| |
|
|
| |
(c) |
convert
all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares of any denomination; |
| |
(d) |
sub-divide
its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum, so, however, that in the sub-division,
the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of
the Share from which the reduced Share is derived; and |
| |
|
|
| |
(e) |
cancel
Shares which, at the date of the passing of that Ordinary Resolution, have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the Shares so cancelled or, in the case of Shares without nominal par value,
diminish the number of Shares into which its capital is divided. |
Dealing
with fractions resulting from consolidation of Shares
| 8.2 |
Whenever,
as a result of a consolidation of Shares, any Members would become entitled to fractions of a Share the directors may on behalf of
those Members deal with the fractions as it thinks fit, including (without limitation): |
| |
(a) |
sell
the Shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions
of the Act, the Company); and |
| |
|
|
| |
(b) |
distribute
the net proceeds in due proportion among those Members. |
For
that purpose, the directors may authorise some person to execute an instrument of transfer of the Shares to, or in accordance with the
directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee’s
title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.
Reducing
share capital
| 8.3 |
Subject
to the Act and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may, by
Special Resolution, reduce its share capital in any way. |
| |
|
| 9 |
Redemption
and purchase of own Shares |
Power
to issue redeemable Shares and to purchase own Shares
| 9.1 |
Subject
to the Act, and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may by
its directors: |
| |
(a) |
issue
Shares that are to be redeemed or liable to be redeemed, at the option of the Company or the Member holding those redeemable Shares,
on the terms and in the manner its directors determine before the issue of those Shares; |
| |
(b) |
with
the consent by Special Resolution of the Members holding Shares of a particular class, vary the rights attaching to that class of
Shares so as to provide that those Shares are to be redeemed or are liable to be redeemed at the option of the Company on the terms
and in the manner which the directors determine at the time of such variation; and |
| |
|
|
| |
(c) |
purchase
all or any of its own Shares of any class including any redeemable Shares on the terms and in the manner which the directors determine
at the time of such purchase. |
The
Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Act, including
out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
Power
to pay for redemption or purchase in cash or in specie
| 9.2 |
When
making a payment in respect of the redemption or purchase of Shares, the directors may make the payment in cash or in specie (or
partly in one and partly in the other) if so authorised by the terms of the allotment of those Shares, or by the terms applying to
those Shares in accordance with Article 9.1, or otherwise by agreement with the Member holding those Shares. |
Effect
of redemption or purchase of a Share
| 9.3 |
Upon
the date of redemption or purchase of a Share: |
| |
(a) |
the
Member holding that Share shall cease to be entitled to any rights in respect of the Share other than the right to receive: |
| |
(i) |
the
price for the Share; and |
| |
|
|
| |
(ii) |
any
dividend declared in respect of the Share prior to the date of redemption or purchase; |
| |
(b) |
the
Member’s name shall be removed from the register of members with respect to the Share; and |
| |
|
|
| |
(c) |
the
Share shall be cancelled or held as a Treasury Shares, as the directors may determine. |
For
the purpose of this Article, the date of redemption or purchase is the date when Member’s name is removed from the register of
Members with respect to the Shares the subject of the redemption or purchase.
Power
to call meetings
| 10.1 |
The
directors may call a general meeting at any time. |
| |
|
| 10.2 |
If
there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional
directors, the directors must call a general meeting for the purpose of appointing additional directors. |
| |
|
| 10.3 |
The
directors must also call a general meeting if requisitioned in the manner set out in the next two Articles. |
| |
|
| 10.4 |
The
requisition must be in writing and given by one or more Members who together hold at least 10% of the rights to vote at such general
meeting. |
| |
|
| 10.5 |
The
requisition must also: |
| |
(a) |
specify
the purpose of the meeting. |
| |
|
|
| |
(b) |
be
signed by or on behalf of each requisitioner (and for this purpose each joint holder shall be obliged to sign). The requisition may
consist of several documents in like form signed by one or more of the requisitioners. |
| |
|
|
| |
(c) |
be
delivered in accordance with the notice provisions. |
| 10.6 |
Should
the directors fail to call a general meeting within 21 Clear Days from the date of receipt of a requisition, the requisitioners or
any of them may call a general meeting within three months after the end of that period. |
| |
|
| 10.7 |
Without
limitation to the foregoing, if there are insufficient directors to constitute a quorum and the remaining directors are unable to
agree on the appointment of additional directors, any one or more Members who together hold at least 10% of the rights to vote at
a general meeting may call a general meeting for the purpose of considering the business specified in the notice of meeting which
shall include as an item of business the appointment of additional directors. |
| |
|
| 10.8 |
If
the Members call a meeting under the above provisions, the Company shall reimburse their reasonable expenses. |
Content
of notice
| 10.9 |
Notice
of a general meeting shall specify each of the following: |
| |
(a) |
the
place, the date and the hour of the meeting; |
| |
|
|
| |
(b) |
if
the meeting is to be held in two or more places, or any meeting at which Electronic Communication Facilities will be utilized (including
any Virtual Meeting), the Electronic Communication Facilities that will be used to facilitate the meeting, including the procedures
to be followed by any Member or other participant of the meeting who wishes to utilise such Electronic Communication Facilities for
the purposes of attending and participating in such meeting; |
| |
|
|
| |
(c) |
subject
to paragraph (d), the general nature of the business to be transacted; and |
| |
|
|
| |
(d) |
if
a resolution is proposed as a Special Resolution, the text of that resolution. |
| 10.10 | In
each notice there shall appear with reasonable prominence the following statements: |
| |
(a) |
that
a Member who is entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of that Member;
and |
| |
|
|
| |
(b) |
that
a proxyholder need not be a Member. |
Period
of notice
| 10.11 | At
least five Clear Days’ notice of a general meeting must be given to Members. But a
meeting may be convened on shorter notice with the consent of the Member or Members who,
individually or collectively, hold at least 90% of the voting rights of all those who have
a right to vote at that meeting. |
Persons
entitled to receive notice
| 10.12 | Subject
to the provisions of these Articles and to any restrictions imposed on any Shares, the notice
shall be given to the following people: |
| |
(a) |
the
Members; |
| |
|
|
| |
(b) |
persons
entitled to a Share in consequence of the death or bankruptcy of a Member; and |
| |
|
|
| |
(c) |
the
directors. |
Publication
of notice on a website
| 10.13 | Subject
to the Act, a notice of a general meeting may be published on a website providing the recipient
is given separate notice of: |
| |
(a) |
the
publication of the notice on the website; |
| |
|
|
| |
(b) |
the
place on the website where the notice may be accessed; |
| |
(c) |
how
it may be accessed; and |
| |
|
|
| |
(d) |
the
place, date and time of the general meeting. |
| 10.14 | If
a Member notifies the Company that he is unable for any reason to access the website, the
Company must as soon as practicable give notice of the meeting to that Member by any other
means permitted by these Articles. But this will not affect when that Member is deemed to
have received notice of the meeting. |
Time
a website notice is deemed to be given
| 10.15 | A
website notice is deemed to be given when the Member is given notice of its publication. |
Required
duration of publication on a website
| 10.16 | Where
the notice of meeting is published on a website, it shall continue to be published in the
same place on that website from the date of the notification until the conclusion of the
meeting to which the notice relates. |
Accidental
omission to give notice or non-receipt of notice
| 10.17 | Proceedings
at a meeting shall not be invalidated by the following: |
| |
(a) |
an
accidental failure to give notice of the meeting to any person entitled to notice; or |
| |
|
|
| |
(b) |
non-receipt
of notice of the meeting by any person entitled to notice. |
| 10.18 | In
addition, where a notice of meeting is published on a website, proceedings at the meeting
shall not be invalidated merely because it is accidentally published: |
| |
(a) |
in
a different place on the website; or |
| |
|
|
| |
(b) |
for
part only of the period from the date of the notification until the conclusion of the meeting to which the notice relates. |
| 11 | Proceedings
at meetings of Members |
Quorum
| 11.1 | Save
as provided in the following Article, no business shall be transacted at any meeting unless
a quorum is present in person or by proxy at the meeting. A quorum is as follows: |
| |
(a) |
if
the Company has only one Member: that Member; |
| |
|
|
| |
(b) |
if
the Company has more than one Member: two Members. |
Lack
of quorum
| 11.2 | If
a quorum is not present at the meeting within 15 minutes of the time appointed for the meeting,
or if at any time during the meeting it becomes inquorate, then the following provisions
apply: |
| |
(a) |
If
the meeting was requisitioned by Members, it shall be cancelled. |
| |
|
|
| |
(b) |
In
any other case, the meeting shall stand adjourned to the same time and place seven days hence, or to such other time or place as
is determined by the directors. If a quorum is not present at the meeting within 15 minutes of the time appointed for the adjourned
meeting, then the Members present in person or by proxy at the meeting shall constitute a quorum. |
Use
of technology
| 11.3 | A
person may participate in a general meeting through the medium of conference telephone, video
or any other form of communications equipment providing all persons participating in the
meeting are able to hear and speak to each other throughout the meeting. A person participating
in this way is deemed to be present in person at the meeting. |
Chairman
| 11.4 | The
chairman of a general meeting (including any Virtual Meeting) shall be the chairman of the
board or such other director as the directors have nominated to chair board meetings in the
absence of the chairman of the board. Absent any such person being present at the meeting
within 15 minutes of the time appointed for the meeting, the directors present shall elect
one of their number to chair the meeting. The chairman of the meeting shall be entitled to
attend and participate at any such general meeting by means of Electronic Communication Facilities,
and to act as the chairman of such general meeting, in which event the chairman of the meeting
shall be deemed to be present at the meeting. |
| 11.5 | If
no director is present within 15 minutes of the time appointed for the meeting, or if no
director is willing to act as chairman, the Members present in person or by proxy and entitled
to vote shall choose one of their number to chair the meeting. |
Right
of a director to attend and speak
| 11.6 | Even
if a director is not a Member, he shall be entitled to attend and speak at any general meeting
and at any separate meeting of Members holding a particular class of Shares in the Company. |
Adjournment
| 11.7 | The
chairman may at any time adjourn a meeting with the consent of the Members constituting a
quorum. The chairman must adjourn the meeting if so directed by the meeting. No business,
however, can be transacted at an adjourned meeting other than business which might properly
have been transacted at the original meeting. |
| 11.8 | Should
a meeting be adjourned for more than seven Clear Days, whether because of a lack of quorum
or otherwise, Members shall be given at least seven Clear Days’ notice of the date,
time and place of the adjourned meeting and the general nature of the business to be transacted.
Otherwise it shall not be necessary to give any notice of the adjournment. |
Method
of voting
| 11.9 | A
resolution put to the vote of the meeting shall be decided on a show of hands unless before,
or on the declaration of the result of the show of hands, a poll is duly demanded. A poll
may be demanded: |
| |
(a) |
by
the chairman; or |
| |
|
|
| |
(b) |
by
any Member or Members present who, individually or collectively, hold at least 10% of the voting rights of all those who have a right
to vote on the resolution. |
Outcome
of vote by show of hands
| 11.10 | Unless
a poll is duly demanded, a declaration by the chairman as to the result of a resolution and
an entry to that effect in the minutes of the meeting shall be conclusive evidence of the
outcome of a show of hands without proof of the number or proportion of the votes recorded
in favour of or against the resolution. |
Withdrawal
of demand for a poll
| 11.11 | The
demand for a poll may be withdrawn before the poll is taken, but only with the consent of
the chairman. The chairman shall announce any such withdrawal to the meeting and, unless
another person forthwith demands a poll, any earlier show of hands on that resolution shall
be treated as the vote on that resolution; if there has been no earlier show of hands, then
the resolution shall be put to the vote of the meeting. |
Taking
of a poll
| 11.12 | A
poll demanded on the question of adjournment shall be taken immediately. |
| 11.13 | A
poll demanded on any other question shall be taken either immediately or at an adjourned
meeting at such time and place as the chairman directs, not being more than 30 Clear Days
after the poll was demanded. |
| 11.14 | The
demand for a poll shall not prevent the meeting continuing to transact any business other
than the question on which the poll was demanded. |
| 11.15 | A
poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who
need not be Members) and fix a place and time for declaring the result of the poll. If, through
the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers
in more than place; but if he considers that the poll cannot be effectively monitored at
that meeting, the chairman shall adjourn the holding of the poll to a date, place and time
when that can occur. |
Chairman’s
casting vote
| 11.16 | If
the votes on a resolution, whether on a show of hands or on a poll, are equal the chairman
may if he wishes exercise a casting vote. |
Amendments
to resolutions
| 11.17 | An
Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution
if: |
| |
(a) |
not
less than 48 hours before the meeting is to take place (or such later time as the chairman of the meeting may determine), notice
of the proposed amendment is given to the Company in writing by a Member entitled to vote at that meeting; and |
| |
|
|
| |
(b) |
the
proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution. |
| 11.18 | A
Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution,
if: |
| |
(a) |
the
chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed, and |
| |
|
|
| |
(b) |
the
amendment does not go beyond what the chairman considers is necessary to correct a grammatical or other non-substantive error in
the resolution. |
| 11.19 | If
the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a
resolution is out of order, the chairman’s error does not invalidate the vote on that
resolution. |
Written
resolutions
| 11.20 | Without
limitation to section 60(1) of the Act, Members may pass a Special Resolution in writing
without holding a meeting if the following conditions are met: |
| |
(a) |
all
Members entitled to vote are given notice of the resolution as if the same were being proposed at a meeting of Members; |
| |
(b) |
all
Members entitled so to vote : |
| |
(i) |
sign
a document; or |
| |
|
|
| |
(ii) |
sign
several documents in the like form each signed by one or more of those Members; and |
| |
(c) |
the
signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an Electronic
Record by Electronic means to the address specified for that purpose. |
Such
written resolution, which shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and
held, is passed when all such Members have so signified their agreement to the resolution.
| 11.21 | Members
may pass an Ordinary Resolution in writing without holding a meeting if the following conditions
are met: |
| |
(a) |
all
Members entitled to vote on the resolution are: |
| |
(i) |
given
notice of the resolution as if the same were being proposed at a meeting of Members; and |
| |
|
|
| |
(ii) |
notified
in the same or an accompanying notice of the date by which the resolution must be passed if it is not to lapse, being a period of
seven (7) days beginning with the date that the notice is first given; |
| |
(b) |
the
required majority of the Members entitled so to vote: |
| |
(i) |
sign
a document; or |
| |
|
|
| |
(ii) |
sign
several documents in the like form each signed by one or more of those Members; and |
| |
(c) |
the
signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an Electronic
Record by Electronic means to the address specified for that purpose. |
Such
written resolution, which shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and
held, is passed upon the later of these dates: (i) subject to the following Article, the date next immediately following the end of the
period of three (3) days beginning with the date that notice of the resolution is first given and (ii) the date when the required majority
have so signified their agreement to the resolution. However, the proposed written resolution lapses if it is not passed before the end
of the period of seven (7) days beginning with the date that notice of it is first given.
| 11.22 |
If
all Members entitled to be given notice of the Ordinary Resolution consent, a written resolution may be passed as soon as the required
majority have signified their agreement to the resolution, without any minimum period of time having first elapsed. Save that the
consent of the majority may be incorporated in the written resolution, each consent shall be in writing or given by Electronic Record
and shall otherwise be given to the Company in accordance with Article 29 (relating to notices) prior to the written resolution taking
effect. |
| |
|
| 11.23 |
The
directors may determine the manner in which written resolutions shall be put to Members. In particular, they may provide, in the
form of any written resolution, for each Member to indicate, out of the number of votes the Member would have been entitled to cast
at a meeting to consider the resolution, how many votes he wishes to cast in favour of the resolution and how many against the resolution
or to be treated as abstentions. The result of any such written resolution shall be determined on the same basis as on a poll. |
Sole-member
company
| 11.24 |
If
the Company has only one Member, and the Member records in writing his decision on a question, that record shall constitute both
the passing of a resolution and the minute of it. |
| |
|
| 12 |
Voting
rights of Members |
Right
to vote
| 12.1 |
Unless
their Shares carry no right to vote, or unless a call or other amount presently payable has not been paid, all Members are entitled
to vote at a general meeting, whether on a show of hands or on a poll, and all Members holding Shares of a particular class of Shares
are entitled to vote at a meeting of the holders of that class of Shares. |
| |
|
| 12.2 |
Members
may vote in person or by proxy. |
| |
|
| 12.3 |
On
a show of hands, every Member shall have one vote. For the avoidance of doubt, an individual who represents two or more Members,
including a Member in that individual’s own right, that individual shall be entitled to a separate vote for each Member. |
| |
|
| 12.4 |
On
a poll a Member shall have one vote for each Share he holds, unless any Share carries special voting rights. |
| |
|
| 12.5 |
A
fraction of a Share shall entitle its holder to an equivalent fraction of one vote. |
| |
|
| 12.6 |
No
Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his Shares in the same way. |
Rights
of joint holders
| 12.7 | If
Shares are held jointly, only one of the joint holders may vote. If more than one of the
joint holders tenders a vote, the vote of the holder whose name in respect of those Shares
appears first in the register of members shall be accepted to the exclusion of the votes
of the other joint holder. |
Representation
of corporate Members
| 12.8 |
Save
where otherwise provided, a corporate Member must act by a duly authorised representative. |
| |
|
| 12.9 |
A
corporate Member wishing to act by a duly authorised representative must identify that person to the Company by notice in writing. |
| |
|
| 12.10 |
The
authorisation may be for any period of time, and must be delivered to the Company not less than two hours before the commencement
of the meeting at which it is first used. |
| |
|
| 12.11 |
The
directors of the Company may require the production of any evidence which they consider necessary to determine the validity of the
notice. |
| |
|
| 12.12 |
Where
a duly authorised representative is present at a meeting that Member is deemed to be present in person; and the acts of the duly
authorised representative are personal acts of that Member. |
| |
|
| 12.13 |
A
corporate Member may revoke the appointment of a duly authorised representative at any time by notice to the Company; but such revocation
will not affect the validity of any acts carried out by the duly authorised representative before the directors of the Company had
actual notice of the revocation. |
Member
with mental disorder
| 12.14 |
A
Member in respect of whom an order has been made by any court having jurisdiction (whether in the Cayman Islands or elsewhere) in
matters concerning mental disorder may vote, whether on a show of hands or on a poll, by that Member’s receiver, curator bonis
or other person authorised in that behalf appointed by that court. |
| |
|
| 12.15 |
For
the purpose of the preceding Article, evidence to the satisfaction of the directors of the authority of the person claiming to exercise
the right to vote must be received not less than 24 hours before holding the relevant meeting or the adjourned meeting in any manner
specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic means. In default, the right to
vote shall not be exercisable. |
Objections
to admissibility of votes
| 12.16 | An
objection to the validity of a person’s vote may only be raised at the meeting or at
the adjourned meeting at which the vote is sought to be tendered. Any objection duly made
shall be referred to the chairman whose decision shall be final and conclusive. |
Form
of proxy
| 12.17 |
An
instrument appointing a proxy shall be in any common form or in any other form approved by the directors. |
| |
|
| 12.18 |
The
instrument must be in writing and signed in one of the following ways: |
| |
(a) |
by
the Member; or |
| |
|
|
| |
(b) |
by
the Member’s authorised attorney; or |
| |
|
|
| |
(c) |
if
the Member is a corporation or other body corporate, under seal or signed by an authorised officer, secretary or attorney. |
If
the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and
otherwise satisfying the Articles about authentication of Electronic Records.
| 12.19 |
The
directors may require the production of any evidence which they consider necessary to determine the validity of any appointment of
a proxy. |
| |
|
| 12.20 |
A
Member may revoke the appointment of a proxy at any time by notice to the Company duly signed in accordance with the Article above
about signing proxies; but such revocation will not affect the validity of any acts carried out by the proxy before the directors
of the Company had actual notice of the revocation. |
How
and when proxy is to be delivered
| 12.21 | Subject
to the following Articles, the Directors may, in the notice convening any meeting or adjourned
meeting, or in an instrument of proxy sent out by the Company, specify the manner by which
the instrument appointing a proxy shall be deposited and the place and the time (being not
later than the time appointed for the commencement of the meeting or adjourned meeting to
which the proxy relates) at which the instrument appointing a proxy shall be deposited. In
the absence of any such direction from the Directors in the notice convening any meeting
or adjourned meeting or in an instrument of proxy sent out by the Company, the form of appointment
of a proxy and any authority under which it is signed (or a copy of the authority certified
notarially or in any other way approved by the directors) must be delivered so that it is
received by the Company at any time before the time for holding the meeting or adjourned
meeting at which the person named in the form of appointment of proxy proposes to vote. They
must be delivered in either of the following ways: |
| |
(a) |
In
the case of an instrument in writing, it must be left at or sent by post: |
| |
(i) |
to
the registered office of the Company; or |
| |
|
|
| |
(ii) |
to
such other place within the Cayman Islands specified in the notice convening the meeting or in any form of appointment of proxy sent
out by the Company in relation to the meeting. |
| |
(b) |
If,
pursuant to the notice provisions, a notice may be given to the Company in an Electronic Record, an Electronic Record of an appointment
of a proxy must be sent to the address specified pursuant to those provisions unless another address for that purpose is specified: |
| |
(i) |
in
the notice convening the meeting; or |
| |
|
|
| |
(ii) |
in
any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
| |
|
|
| |
(iii) |
in
any invitation to appoint a proxy issued by the Company in relation to the meeting. |
| |
(c) |
Notwithstanding
Article 12.21(a) and Article 12.21(b), the chairman of the Company may, in any event at his discretion, direct that an instrument
of proxy shall be deemed to have been duly deposited. |
| 12.22 | Where
a poll is taken: |
| |
(a) |
if
it is taken more than seven Clear Days after it is demanded, the form of appointment of a proxy and any accompanying authority (or
an Electronic Record of the same) must be delivered as required under the preceding Article not less than 24 hours before the time
appointed for the taking of the poll; |
| |
|
|
| |
(b) |
but
if it to be taken within seven Clear Days after it was demanded, the form of appointment of a proxy and any accompanying authority
(or an Electronic Record of the same) must be delivered as required under the preceding Article not less than two hours before the
time appointed for the taking of the poll. |
| 12.23 | If
the form of appointment of proxy is not delivered on time, it is invalid. |
Voting
by proxy
| 12.24 | A
proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would
have had except to the extent that the instrument appointing him limits those rights. Notwithstanding
the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting.
If a Member votes on any resolution a vote by his proxy on the same resolution, unless in
respect of different Shares, shall be invalid. |
Unless
otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum number shall be ten. There
shall be no directors, however, until the first director is or the first directors are appointed by the subscriber or subscribers to
the Memorandum.
| 14 | Appointment,
disqualification and removal of directors |
First
directors
| 14.1 | The
first directors shall be appointed in writing by the subscriber or subscribers to the Memorandum. |
No
age limit
| 14.2 | There
is no age limit for directors save that they must be aged at least 18 years. |
Corporate
directors
| 14.3 | Unless
prohibited by law, a body corporate may be a director. If a body corporate is a director,
the Articles about representation of corporate Members at general meetings apply, mutatis
mutandis, to the Articles about directors’ meetings. |
No
shareholding qualification
| 14.4 | Unless
a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall
be required to own Shares as a condition of his appointment. |
Appointment
of directors
| 14.5 |
A
director may be appointed by Ordinary Resolution or by the directors. Any appointment may be to fill a vacancy or as an additional
director. |
| |
|
| 14.6 |
Notwithstanding
the other provisions of these Articles, in any case where, as a result of death, the Company has no directors and no shareholders,
the personal representatives of the last shareholder to have died have the power, by notice in writing to the Company, to appoint
a person to be a director. For the purpose of this Article: |
| |
(a) |
where
two or more shareholders die in circumstances rendering it uncertain who was the last to die, a younger shareholder is deemed to
have survived an older shareholder; |
| |
(b) |
if
the last shareholder died leaving a will which disposes of that shareholder’s shares in the Company (whether by way of specific
gift, as part of the residuary estate, or otherwise): |
| |
(i) |
the
expression personal representatives of the last shareholder means: |
| |
(A) |
until
a grant of probate in respect of that will has been obtained from the Grand Court of the Cayman Islands, all of the executors named
in that will who are living at the time the power of appointment under this Article is exercised; and |
| |
|
|
| |
(B) |
after
such grant of probate has been obtained, only such of those executors who have proved that will; |
| |
(ii) |
without
derogating from section 3(1) of the Succession Act (Revised), the executors named in that will may exercise the power of appointment
under this Article without first obtaining a grant of probate. |
| 14.7 |
A
remaining director may appoint a director even though there is not a quorum of directors. |
| |
|
| 14.8 |
No
appointment can cause the number of directors to exceed the maximum; and any such appointment shall be invalid. |
Removal
of directors
| 14.9 | A
director may be removed by Ordinary Resolution. |
Resignation
of directors
| 14.10 |
A
director may at any time resign office by giving to the Company notice in writing or, if permitted pursuant to the notice provisions,
in an Electronic Record delivered in either case in accordance with those provisions. |
| |
|
| 14.11 |
Unless
the notice specifies a different date, the director shall be deemed to have resigned on the date that the notice is delivered to
the Company. |
Termination
of the office of director
| 14.12 | A
director’s office shall be terminated forthwith if: |
| |
(a) |
he
is prohibited by the law of the Cayman Islands from acting as a director; or |
| |
|
|
| |
(b) |
he
is made bankrupt or makes an arrangement or composition with his creditors generally; or |
| |
(c) |
in
the opinion of a registered medical practitioner by whom he is being treated he becomes physically or mentally incapable of acting
as a director; or |
| |
|
|
| |
(d) |
he
is made subject to any law relating to mental health or incompetence, whether by court order or otherwise; or |
| |
|
|
| |
(e) |
without
the consent of the other directors, he is absent from meetings of directors for a continuous period of six months. |
Appointment
and removal
| 15.1 | Any
director may appoint any other person, including another director, to act in his place as
an alternate director. No appointment shall take effect until the director has given notice
of the appointment to the other directors. Such notice must be given to each other director
by either of the following methods: |
| |
(a) |
by
notice in writing in accordance with the notice provisions; |
| |
|
|
| |
(b) |
if
the other director has an email address, by emailing to that address a scanned copy of the notice as a PDF attachment (the PDF version
being deemed to be the notice unless Article 30.7 applies), in which event notice shall be taken to be given on the date of receipt
by the recipient in readable form. For the avoidance of doubt, the same email may be sent to the email address of more than one director
(and to the email address of the Company pursuant to Article 15.4(c)). |
| 15.2 |
Without
limitation to the preceding Article, a director may appoint an alternate for a particular meeting by sending an email to his fellow
directors informing them that they are to take such email as notice of such appointment for such meeting. Such appointment shall
be effective without the need for a signed notice of appointment or the giving of notice to the Company in accordance with Article
15.4. |
| |
|
| 15.3 |
A
director may revoke his appointment of an alternate at any time. No revocation shall take effect until the director has given notice
of the revocation to the other directors. Such notice must be given by either of the methods specified in Article 15.1. |
| |
|
| 15.4 |
A
notice of appointment or removal of an alternate director must also be given to the Company by any of the following methods: |
| |
(a) |
by
notice in writing in accordance with the notice provisions; |
| |
|
|
| |
(b) |
if
the Company has a facsimile address for the time being, by sending by facsimile transmission to that facsimile address a facsimile
copy or, otherwise, by sending by facsimile transmission to the facsimile address of the Company’s registered office a facsimile
copy (in either case, the facsimile copy being deemed to be the notice unless Article 30.7 applies), in which event notice shall
be taken to be given on the date of an error-free transmission report from the sender’s fax machine; |
| |
(c) |
if
the Company has an email address for the time being, by emailing to that email address a scanned copy of the notice as a PDF attachment
or, otherwise, by emailing to the email address provided by the Company’s registered office a scanned copy of the notice as
a PDF attachment (in either case, the PDF version being deemed to be the notice unless Article 30.7 applies), in which event notice
shall be taken to be given on the date of receipt by the Company or the Company’s registered office (as appropriate) in readable
form; or |
| |
|
|
| |
(d) |
if
permitted pursuant to the notice provisions, in some other form of approved Electronic Record delivered in accordance with those
provisions in writing. |
Notices
| 15.5 | All
notices of meetings of directors shall continue to be given to the appointing director and
not to the alternate. |
Rights
of alternate director
| 15.6 |
An
alternate director shall be entitled to attend and vote at any board meeting or meeting of a committee of the directors at which
the appointing director is not personally present, and generally to perform all the functions of the appointing director in his absence. |
| |
|
| 15.7 |
For
the avoidance of doubt: |
| |
(a) |
if
another director has been appointed an alternate director for one or more directors, he shall be entitled to a separate vote in his
own right as a director and in right of each other director for whom he has been appointed an alternate; and |
| |
|
|
| |
(b) |
if
a person other than a director has been appointed an alternate director for more than one director, he shall be entitled to a separate
vote in right of each director for whom he has been appointed an alternate. |
| 15.8 | An
alternate director, however, is not entitled to receive any remuneration from the Company
for services rendered as an alternate director. |
Appointment
ceases when the appointor ceases to be a director
| 15.9 | An
alternate director shall cease to be an alternate director if the director who appointed
him ceases to be a director. |
Status
of alternate director
| 15.10 |
An
alternate director shall carry out all functions of the director who made the appointment. |
| |
|
| 15.11 |
Save
where otherwise expressed, an alternate director shall be treated as a director under these Articles. |
| |
|
| 15.12 |
An
alternate director is not the agent of the director appointing him. |
| |
|
| 15.13 |
An
alternate director is not entitled to any remuneration for acting as alternate director. |
Status
of the director making the appointment
| 15.14 |
A
director who has appointed an alternate is not thereby relieved from the duties which he owes the Company. |
| |
|
| 16 |
Powers
of directors |
Powers
of directors
| 16.1 |
Subject
to the provisions of the Act, the Memorandum and these Articles, the business of the Company shall be managed by the directors who
may for that purpose exercise all the powers of the Company. |
| |
|
| 16.2 |
No
prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum or these Articles. However, to the
extent allowed by the Act, Members may by Special Resolution validate any prior or future act of the directors which would otherwise
be in breach of their duties. |
Appointments
to office
| 16.3 | The
directors may appoint a director: |
| |
(a) |
as
chairman of the board of directors; |
| |
|
|
| |
(b) |
as
managing director; |
| |
|
|
| |
(c) |
to
any other executive office |
for
such period and on such terms, including as to remuneration, as they think fit.
| 16.4 |
The
appointee must consent in writing to holding that office. |
| |
|
| 16.5 |
Where
a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors. |
| 16.6 |
If
there is no chairman, or if the chairman is unable to preside at a meeting, that meeting may select its own chairman; or the directors
may nominate one of their number to act in place of the chairman should he ever not be available. |
| |
|
| 16.7 |
Subject
to the provisions of the Act, the directors may also appoint any person, who need not be a director: |
| |
(a) |
as
Secretary; and |
| |
|
|
| |
(b) |
to
any office that may be required |
for
such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given
any title the directors decide.
| 16.8 |
The
Secretary or Officer must consent in writing to holding that office. |
| |
|
| 16.9 |
A
director, Secretary or other Officer of the Company may not the hold the office, or perform the services, of auditor. |
Remuneration
| 16.10 |
Every
director may be remunerated by the Company for the services he provides for the benefit of the Company, whether as director, employee
or otherwise, and shall be entitled to be paid for the expenses incurred in the Company’s business including attendance at
directors’ meetings. |
| |
|
| 16.11 |
A
director’s remuneration shall be fixed by the Company by Ordinary Resolution or as the directors may determine. Unless that
resolution provides otherwise, the remuneration shall be deemed to accrue from day to day. |
| |
|
| 16.12 |
Remuneration
may take any form and may include arrangements to pay pensions, health insurance, death or sickness benefits, whether to the director
or to any other person connected to or related to him. |
| |
|
| 16.13 |
Unless
his fellow directors determine otherwise, a director is not accountable to the Company for remuneration or other benefits received
from any other company which is in the same group as the Company or which has common shareholdings. |
Disclosure
of information
| 16.14 | The
directors may release or disclose to a third party any information regarding the affairs
of the Company, including any information contained in the register of members relating to
a Member, (and they may authorise any director, Officer or other authorised agent of the
Company to release or disclose to a third party any such information in his possession) if: |
| |
(a) |
the
Company or that person, as the case may be, is lawfully required to do so under the laws of any jurisdiction to which the Company
is subject; or |
| |
(b) |
such
disclosure is in compliance with the Designated Stock Exchange Rules; or |
| |
|
|
| |
(c) |
such
disclosure is in accordance with any contract entered into by the Company; or |
| |
|
|
| |
(d) |
the
directors are of the opinion such disclosure would assist or facilitate the Company’s operations. |
Power
to delegate any of the directors’ powers to a committee
| 17.1 |
The
directors may delegate any of their powers to any committee consisting of one or more persons who need not be Members. Persons on
the committee may include non-directors so long as the majority of those persons are directors. |
| |
|
| 17.2 |
The
delegation may be collateral with, or to the exclusion of, the directors’ own powers. |
| |
|
| 17.3 |
The
delegation may be on such terms as the directors think fit, including provision for the committee itself to delegate to a sub-committee;
save that any delegation must be capable of being revoked or altered by the directors at will. |
| |
|
| 17.4 |
Unless
otherwise permitted by the directors, a committee must follow the procedures prescribed for the taking of decisions by directors. |
Power
to appoint an agent of the Company
| 17.5 | The
directors may appoint any person, either generally or in respect of any specific matter,
to be the agent of the Company with or without authority for that person to delegate all
or any of that person’s powers. The directors may make that appointment: |
| |
(a) |
by
causing the Company to enter into a power of attorney or agreement; or |
| |
|
|
| |
(b) |
in
any other manner they determine. |
Power
to appoint an attorney or authorised signatory of the Company
| 17.6 | The
directors may appoint any person, whether nominated directly or indirectly by the directors,
to be the attorney or the authorised signatory of the Company. The appointment may be: |
| |
(a) |
for
any purpose; |
| |
|
|
| |
(b) |
with
the powers, authorities and discretions; |
| |
(c) |
for
the period; and |
| |
|
|
| |
(d) |
subject
to such conditions |
as
they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under
these Articles. The directors may do so by power of attorney or any other manner they think fit.
| 17.7 | Any
power of attorney or other appointment may contain such provision for the protection and
convenience for persons dealing with the attorney or authorised signatory as the directors
think fit. Any power of attorney or other appointment may also authorise the attorney or
authorised signatory to delegate all or any of the powers, authorities and discretions vested
in that person. |
Power
to appoint a proxy
| 17.8 |
Any
director may appoint any other person, including another director, to represent him at any meeting of the directors. If a director
appoints a proxy, then for all purposes the presence or vote of the proxy shall be deemed to be that of the appointing director. |
| |
|
| 17.9 |
Articles
15.1 to 15.4 inclusive (relating to the appointment by directors of alternate directors) apply, mutatis mutandis, to the appointment
of proxies by directors. |
| |
|
| 17.10 |
A
proxy is an agent of the director appointing him and is not an officer of the Company. |
| |
|
| 18 |
Meetings
of directors |
Regulation
of directors’ meetings
| 18.1 | Subject
to the provisions of these Articles, the directors may regulate their proceedings as they
think fit. |
Calling
meetings
| 18.2 | Any
director may call a meeting of directors at any time. The Secretary, if any, must call a
meeting of the directors if requested to do so by a director. |
Notice
of meetings
| 18.3 | Every
director shall be given notice of a meeting, although a director may waive retrospectively
the requirement to be given notice. Notice may be oral. |
Period
of notice
| 18.4 | At
least five Clear Days’ notice of a meeting of directors must be given to directors.
But a meeting may be convened on shorter notice with the consent of all directors. |
Use
of technology
| 18.5 |
A
director may participate in a meeting of directors through the medium of conference telephone, video or any other form of communications
equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. |
| |
|
| 18.6 |
A
director participating in this way is deemed to be present in person at the meeting. |
Place
of meetings
| 18.7 | If
all the directors participating in a meeting are not in the same place, they may decide that
the meeting is to be treated as taking place wherever any of them is. |
Quorum
| 18.8 | The
quorum for the transaction of business at a meeting of directors shall be two unless the
directors fix some other number or unless the Company has only one director. |
Voting
| 18.9 | A
question which arises at a board meeting shall be decided by a majority of votes. If votes
are equal the chairman may, if he wishes, exercise a casting vote. |
Validity
| 18.10 | Anything
done at a meeting of directors is unaffected by the fact that it is later discovered that
any person was not properly appointed, or had ceased to be a director, or was otherwise not
entitled to vote. |
Recording
of dissent
| 18.11 | A
director present at a meeting of directors shall be presumed to have assented to any action
taken at that meeting unless: |
| |
(a) |
his
dissent is entered in the minutes of the meeting; or |
| |
|
|
| |
(b) |
he
has filed with the meeting before it is concluded signed dissent from that action; or |
| |
|
|
| |
(c) |
he
has forwarded to the Company as soon as practical following the conclusion of that meeting signed dissent. |
A
director who votes in favour of an action is not entitled to record his dissent to it.
Written
resolutions
| 18.12 |
The
directors may pass a resolution in writing without holding a meeting if all directors sign a document or sign several documents in
the like form each signed by one or more of those directors. |
| |
|
| 18.13 |
Despite
the foregoing, a resolution in writing signed by a validly appointed alternate director or by a validly appointed proxy need not
also be signed by the appointing director. But if a written resolution is signed personally by the appointing director, it need not
also be signed by his alternate or proxy. |
| |
|
| 18.14 |
Such
written resolution shall be as effective as if it had been passed at a meeting of the directors duly convened and held; and it shall
be treated as having been passed on the day and at the time that the last director signs. |
Sole
director’s minute
| 18.15 |
Where
a sole director signs a minute recording his decision on a question, that record shall constitute the passing of a resolution in
those terms. |
| |
|
| 19 |
Permissible
directors’ interests and disclosure |
Permissible
interests subject to disclosure
| 19.1 |
Save
as expressly permitted by these Articles or as set out below, a director may not have a direct or indirect interest or duty which
conflicts or may possibly conflict with the interests of the Company. |
| |
|
| 19.2 |
If,
notwithstanding the prohibition in the preceding Article, a director discloses to his fellow directors the nature and extent of any
material interest or duty in accordance with the next Article, he may: |
| |
(a) |
be
a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is or may otherwise
be interested; |
| |
|
|
| |
(b) |
be
interested in another body corporate promoted by the Company or in which the Company is otherwise interested. In particular, the
director may be a director, secretary or officer of, or employed by, or be a party to any transaction or arrangement with, or otherwise
interested in, that other body corporate. |
| 19.3 |
Such
disclosure may be made at a meeting at a meeting of the board or otherwise (and, if otherwise, it must be made in writing). The director
must disclose the nature and extent of his direct or indirect interest in or duty in relation to a transaction or arrangement or
series of transactions or arrangements with the Company or in which the Company has any material interest. |
| 19.4 | If
a director has made disclosure in accordance with the preceding Article, then he shall not,
by reason only of his office, be accountable to the Company for any benefit that he derives
from any such transaction or arrangement or from any such office or employment 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. |
Notification
of interests
| 19.5 | For
the purposes of the preceding Articles: |
| |
(a) |
a
general notice that a director gives to the other directors that he 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 he has an interest in or duty in relation to any such transaction of the nature and extent so specified;
and |
| |
|
|
| |
(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. |
| 19.6 | A
director shall not be treated as having an interest in a transaction or arrangement if he
has no knowledge of that interest and it is unreasonable to expect the director to have that
knowledge. |
Voting
where a director is interested in a matter
| 19.7 |
A
director may vote at a meeting of directors on any resolution concerning a matter in which that director has an interest or duty,
whether directly or indirectly, so long as that director discloses any material interest pursuant to these Articles. The director
shall be counted towards a quorum of those present at the meeting. If the director votes on the resolution, his vote shall be counted. |
| |
|
| 19.8 |
Where
proposals are under consideration concerning the appointment of two or more directors to offices or employment with the Company or
any body corporate in which the Company is interested, the proposals may be divided and considered in relation to each director separately
and each of the directors concerned shall be entitled to vote and be counted in the quorum in respect of each resolution except that
concerning his or her own appointment. |
The
Company shall cause minutes to be made in books kept for the purpose in accordance with the Act.
Accounting
and other records
| 21.1 |
The
directors must ensure that proper accounting and other records are kept, and that accounts and associated reports are distributed
in accordance with the requirements of the Act. |
No
automatic right of inspection
| 21.2 |
Members
are only entitled to inspect the Company’s records if they are expressly entitled to do so by law, or by resolution made by
the directors or passed by Ordinary Resolution. |
Sending
of accounts and reports
| 21.3 |
The
Company’s accounts and associated directors’ report or auditor’s report that are required or permitted to be sent
to any person pursuant to any law shall be treated as properly sent to that person if: |
| |
(a) |
they
are sent to that person in accordance with the notice provisions: or |
| |
|
|
| |
(b) |
they
are published on a website providing that person is given separate notice of: |
| |
|
(i) |
the
fact that publication of the documents has been published on the website; |
| |
|
|
|
| |
|
(ii) |
the
address of the website; and |
| |
|
|
|
| |
|
(iii) |
the
place on the website where the documents may be accessed; and |
| |
|
|
|
| |
|
(iv) |
how
they may be accessed. |
| 21.4 |
If,
for any reason, a person notifies the Company that he is unable to access the website, the Company must, as soon as practicable,
send the documents to that person by any other means permitted by these Articles. This, however, will not affect when that person
is taken to have received the documents under the next Article. |
Time
of receipt if documents are published on a website
| 21.5 |
Documents
sent by being published on a website in accordance with the preceding two Articles are only treated as sent at least five Clear Days
before the date of the meeting at which they are to be laid if: |
| |
(a) |
the
documents are published on the website throughout a period beginning at least five Clear Days before the date of the meeting and
ending with the conclusion of the meeting; and |
| |
|
|
| |
(b) |
the
person is given at least five Clear Days’ notice of the hearing. |
Validity
despite accidental error in publication on website
| 21.6 |
If,
for the purpose of a meeting, documents are sent by being published on a website in accordance with the preceding Articles, the proceedings
at that meeting are not invalidated merely because: |
| |
(a) |
those
documents are, by accident, published in a different place on the website to the place notified; or |
| |
|
|
| |
(b) |
they
are published for part only of the period from the date of notification until the conclusion of that meeting. |
When
accounts are to be audited
| 21.7 |
Unless
the directors or the Members, by Ordinary Resolution, so resolve or unless the Act so requires, the Company’s accounts will
not be audited. If the Members so resolve, the Company’s accounts shall be audited in the manner determined by Ordinary Resolution.
Alternatively, if the directors so resolve, they shall be audited in the manner they determine. |
Unless
the directors otherwise specify, the financial year of the Company:
| (a) | shall
end on 31st December in the year of its incorporation and each following year; and |
| (b) | shall
begin when it was incorporated and on 1st January each following year. |
Except
to the extent of any conflicting rights attached to Shares, the directors may fix any time and date as the record date for declaring
or paying a dividend or making or issuing an allotment of Shares. The record date may be before or after the date on which a dividend,
allotment or issue is declared, paid or made.
Declaration
of dividends by Members
| 24.1 |
Subject
to the provisions of the Act, the Company may by Ordinary Resolution declare dividends in accordance with the respective rights of
the Members but no dividend shall exceed the amount recommended by the directors. |
Payment
of interim dividends and declaration of final dividends by directors
| 24.2 |
The
directors may pay interim dividends or declare final dividends in accordance with the respective rights of the Members if it appears
to them that they are justified by the financial position of the Company and that such dividends may lawfully be paid. |
| |
|
| 24.3 |
Subject
to the provisions of the Act, in relation to the distinction between interim dividends and final dividends, the following applies: |
| |
(a) |
Upon
determination to pay a dividend or dividends described as interim by the directors in the dividend resolution, no debt shall be created
by the declaration until such time as payment is made. |
| |
|
|
| |
(b) |
Upon
declaration of a dividend or dividends described as final by the directors in the dividend resolution, a debt shall be created immediately
following the declaration, the due date to be the date the dividend is stated to be payable in the resolution. |
If
the resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
| 24.4 |
In
relation to Shares carrying differing rights to dividends or rights to dividends at a fixed rate, the following applies: |
| |
(a) |
If
the share capital is divided into different classes, the directors may pay dividends on Shares which confer deferred or non-preferred
rights with regard to dividends as well as on Shares which confer preferential rights with regard to dividends but no dividend shall
be paid on Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. |
| |
|
|
| |
(b) |
The
directors may also pay, at intervals settled by them, any dividend payable at a fixed rate if it appears to them that there are sufficient
funds of the Company lawfully available for distribution to justify the payment. |
| |
|
|
| |
(c) |
If
the directors act in good faith, they shall not incur any liability to the Members holding Shares conferring preferred rights for
any loss those Members may suffer by the lawful payment of the dividend on any Shares having deferred or non-preferred rights. |
Apportionment
of dividends
| 24.5 |
Except
as otherwise provided by the rights attached to Shares, all dividends shall be declared and paid according to the amounts paid up
on the Shares on which the dividend is paid. All dividends shall be apportioned and paid proportionately to the amount paid up on
the Shares during the time or part of the time in respect of which the dividend is paid. But if a Share is issued on terms providing
that it shall rank for dividend as from a particular date, that Share shall rank for dividend accordingly. |
Right
of set off
| 24.6 |
The
directors may deduct from a dividend or any other amount payable to a person in respect of a Share any amount due by that person
to the Company on a call or otherwise in relation to a Share. |
Power
to pay other than in cash
| 24.7 |
If
the directors so determine, any resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution
of assets. If a difficulty arises in relation to the distribution, the directors may settle that difficulty in any way they consider
appropriate. For example, they may do any one or more of the following: |
| |
(a) |
issue
fractional Shares; |
| |
|
|
| |
(b) |
fix
the value of assets for distribution and make cash payments to some Members on the footing of the value so fixed in order to adjust
the rights of Members; and |
| |
|
|
| |
(c) |
vest
some assets in trustees. |
How
payments may be made
| 24.8 |
A
dividend or other monies payable on or in respect of a Share may be paid in any of the following ways: |
| |
(a) |
if
the Member holding that Share or other person entitled to that Share nominates a bank account for that purpose - by wire transfer
to that bank account; or |
| |
|
|
| |
(b) |
by
cheque or warrant sent by post to the registered address of the Member holding that Share or other person entitled to that Share. |
| 24.9 |
For
the purpose of paragraph (a) of the preceding Article, the nomination may be in writing or in an Electronic Record and the bank account
nominated may be the bank account of another person. For the purpose of paragraph (b) of the preceding Article, subject to any applicable
law or regulation, the cheque or warrant shall be made to the order of the Member holding that Share or other person entitled to
the Share or to his nominee, whether nominated in writing or in an Electronic Record, and payment of the cheque or warrant shall
be a good discharge to the Company. |
| |
|
| 24.10 |
If
two or more persons are registered as the holders of the Share or are jointly entitled to it by reason of the death or bankruptcy
of the registered holder (Joint Holders), a dividend (or other amount) payable on or in respect of that Share may be paid
as follows: |
| |
(a) |
to
the registered address of the Joint Holder of the Share who is named first on the register of members or to the registered address
of the deceased or bankrupt holder, as the case may be; or |
| |
(b) |
to
the address or bank account of another person nominated by the Joint Holders, whether that nomination is in writing or in an Electronic
Record. |
| 24.11 |
Any
Joint Holder of a Share may give a valid receipt for a dividend (or other amount) payable in respect of that Share. |
Dividends
or other moneys not to bear interest in absence of special rights
| 24.12 |
Unless
provided for by the rights attached to a Share, no dividend or other monies payable by the Company in respect of a Share shall bear
interest. |
Dividends
unable to be paid or unclaimed
| 24.13 |
If
a dividend cannot be paid to a Member or remains unclaimed within six weeks after it was declared or both, the directors may pay
it into a separate account in the Company’s name. If a dividend is paid into a separate account, the Company shall not be constituted
trustee in respect of that account and the dividend shall remain a debt due to the Member. |
| |
|
| 24.14 |
A
dividend that remains unclaimed for a period of six years after it became due for payment shall be forfeited to, and shall cease
to remain owing by, the Company. |
| 25 |
Capitalisation
of profits |
Capitalisation
of profits or of any share premium account or capital redemption reserve
| 25.1 |
The
directors may resolve to capitalise: |
| |
(a) |
any
part of the Company’s profits not required for paying any preferential dividend (whether or not those profits are available
for distribution); or |
| |
|
|
| |
(b) |
any
sum standing to the credit of the Company’s share premium account or capital redemption reserve, if any. |
The
amount resolved to be capitalised must be appropriated to the Members who would have been entitled to it had it been distributed by way
of dividend and in the same proportions. The benefit to each Member so entitled must be given in either or both of the following ways:
| |
(a) |
by
paying up the amounts unpaid on that Member’s Shares; |
| |
|
|
| |
(b) |
by
issuing Fully Paid Shares, debentures or other securities of the Company to that Member or as that Member directs. The directors
may resolve that any Shares issued to the Member in respect of partly paid Shares (Original Shares) rank for dividend only
to the extent that the Original Shares rank for dividend while those Original Shares remain partly paid. |
Applying
an amount for the benefit of members
| 25.2 |
The
amount capitalised must be applied to the benefit of Members in the proportions to which the Members would have been entitled to
dividends if the amount capitalised had been distributed as a dividend. |
| |
|
| 25.3 |
Subject
to the Act, if a fraction of a Share, a debenture, or other security is allocated to a Member, the directors may issue a fractional
certificate to that Member or pay him the cash equivalent of the fraction. |
Directors
to maintain share premium account
| 26.1 |
The
directors shall establish a share premium account in accordance with the Act. They shall carry to the credit of that account from
time to time an amount equal to the amount or value of the premium paid on the issue of any Share or capital contributed or such
other amounts required by the Act. |
Debits
to share premium account
| 26.2 |
The
following amounts shall be debited to any share premium account: |
| |
(a) |
on
the redemption or purchase of a Share, the difference between the nominal value of that Share and the redemption or purchase price;
and |
| |
|
|
| |
(b) |
any
other amount paid out of a share premium account as permitted by the Act. |
| 26.3 |
Notwithstanding
the preceding Article, on the redemption or purchase of a Share, the directors may pay the difference between the nominal value of
that Share and the redemption purchase price out of the profits of the Company or, as permitted by the Act, out of capital. |
Company
seal
| 27.1 |
The
Company may have a seal if the directors so determine. |
Duplicate
seal
| 27.2 |
Subject
to the provisions of the Act, the Company may also have a duplicate seal or seals for use in any place or places outside the Cayman
Islands. Each duplicate seal shall be a facsimile of the original seal of the Company. However, if the directors so determine, a
duplicate seal shall have added on its face the name of the place where it is to be used. |
When
and how seal is to be used
| 27.3 |
A
seal may only be used by the authority of the directors. Unless the directors otherwise determine, a document to which a seal is
affixed must be signed in one of the following ways: |
| |
(a) |
by
a director (or his alternate) and the Secretary; or |
| |
|
|
| |
(b) |
by
a single director (or his alternate). |
If
no seal is adopted or used
| 27.4 |
If
the directors do not adopt a seal, or a seal is not used, a document may be executed in the following manner: |
| |
(a) |
by
a director (or his alternate) and the Secretary; or |
| |
|
|
| |
(b) |
by
a single director (or his alternate); or |
| |
|
|
| |
(c) |
in
any other manner permitted by the Act. |
Power
to allow non-manual signatures and facsimile printing of seal
| 27.5 |
The
directors may determine that either or both of the following applies: |
| (a) | that
the seal or a duplicate seal need not be affixed manually but may be affixed by some other
method or system of reproduction; |
| (b) | that
a signature required by these Articles need not be manual but may be a mechanical or Electronic
Signature. |
Validity
of execution
| 27.6 |
If
a document is duly executed and delivered by or on behalf of the Company, it shall not be regarded as invalid merely because, at
the date of the delivery, the Secretary, or the director, or other Officer or person who signed the document or affixed the seal
for and on behalf of the Company ceased to be the Secretary or hold that office and authority on behalf of the Company. |
Indemnity
| 28.1 |
To
the extent permitted by law, the Company shall indemnify each existing or former Secretary, director (including alternate director),
and other Officer of the Company (including an investment adviser or an administrator or liquidator) and their personal representatives
against: |
| |
(a) |
all
actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by the existing or former director
(including alternate director), Secretary or Officer in or about the conduct of the Company’s business or affairs or in the
execution or discharge of the existing or former director (including alternate director), Secretary’s or Officer’s duties,
powers, authorities or discretions; and |
| |
|
|
| |
(b) |
without
limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing or former director (including alternate
director), Secretary or Officer in defending (whether successfully or otherwise) any civil, criminal, administrative or investigative
proceedings (whether threatened, pending or completed) concerning the Company or its affairs in any court or tribunal, whether in
the Cayman Islands or elsewhere. |
No
such existing or former director (including alternate director), Secretary or Officer, however, shall be indemnified in respect of any
matter arising out of his own dishonesty.
| 28.2 |
To
the extent permitted by law, the Company may make a payment, or agree to make a payment, whether by way of advance, loan or otherwise,
for any legal costs incurred by an existing or former director (including alternate director), Secretary or Officer of the Company
in respect of any matter identified in paragraph (a) or paragraph (b) of the preceding Article on condition that the director (including
alternate director), Secretary or Officer must repay the amount paid by the Company to the extent that it is ultimately found not
liable to indemnify the director (including alternate director), Secretary or that Officer for those legal costs. |
Release
| 28.3 |
To
the extent permitted by law, the Company may by Special Resolution release any existing or former director (including alternate director),
Secretary or other Officer of the Company from liability for any loss or damage or right to compensation which may arise out of or
in connection with the execution or discharge of the duties, powers, authorities or discretions of his office; but there may be no
release from liability arising out of or in connection with that person’s own dishonesty. |
Insurance
| 28.4 |
To
the extent permitted by law, the Company may pay, or agree to pay, a premium in respect of a contract insuring each of the following
persons against risks determined by the directors, other than liability arising out of that person’s own dishonesty: |
| |
(a) |
an
existing or former director (including alternate director), Secretary or Officer or auditor of: |
| |
|
(i) |
the
Company; |
| |
|
|
|
| |
|
(ii) |
a
company which is or was a subsidiary of the Company; |
| |
|
|
|
| |
|
(iii) |
a
company in which the Company has or had an interest (whether direct or indirect); and |
| |
(b) |
a
trustee of an employee or retirement benefits scheme or other trust in which any of the persons referred to in paragraph (a) is or
was interested. |
Form
of notices
| 29.1 |
Save
where these Articles provide otherwise, any notice to be given to or by any person pursuant to these Articles shall be: |
| |
(a) |
in
writing signed by or on behalf of the giver in the manner set out below for written notices; or |
| |
|
|
| |
(b) |
subject
to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic Signature and authenticated in accordance
with Articles about authentication of Electronic Records; or |
| |
|
|
| |
(c) |
where
these Articles expressly permit, by the Company by means of a website. |
Electronic
communications
| 29.2 |
A
notice may only be given to the Company in an Electronic Record if: |
| |
(a) |
the
directors so resolve; |
| |
|
|
| |
(b) |
the
resolution states how an Electronic Record may be given and, if applicable, specifies an email address for the Company; and |
| |
|
|
| |
(c) |
(if
applicable) the terms of that resolution are notified to the Members for the time being and, if applicable, to those directors who
were absent from the meeting at which the resolution was passed. |
If
the resolution is revoked or varied, the revocation or variation shall only become effective when its terms have been similarly notified.
| 29.3 |
A
notice may not be given by Electronic Record to a person other than the Company unless the recipient has notified the giver of an
Electronic address to which notice may be sent. |
Persons
authorised to give notices
| 29.4 |
A
notice by either the Company or a Member pursuant to these Articles may be given on behalf of the Company or a Member by a director
or company secretary of the Company or a Member. |
Delivery
of written notices
| 29.5 |
Save
where these Articles provide otherwise, a notice in writing may be given personally to the recipient, or left at (as appropriate)
the Member’s or director’s registered address or the Company’s registered office, or posted to that registered
address or registered office. |
Joint
holders
| 29.6 |
Where
Members are joint holders of a Share, all notices shall be given to the Member whose name first appears in the register of members. |
Signatures
| 29.7 |
A
written notice shall be signed when it is autographed by or on behalf of the giver, or is marked in such a way as to indicate its
execution or adoption by the giver. |
| |
|
| 29.8 |
An
Electronic Record may be signed by an Electronic Signature. |
Evidence
of transmission
| 29.9 |
A
notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating the time, date and content of
the transmission, and if no notification of failure to transmit is received by the giver. |
| |
|
| 29.10 |
A
notice given in writing shall be deemed sent if the giver can provide proof that the envelope containing the notice was properly
addressed, pre-paid and posted, or that the written notice was otherwise properly transmitted to the recipient. |
Giving
notice to a deceased or bankrupt Member
| 29.11 |
A
notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending
or delivering it, in any manner authorised by these Articles for the giving of notice to a Member, addressed to them by name, or
by the title of representatives of the deceased, or trustee of the bankrupt or by any like description, at the address, if any, supplied
for that purpose by the persons claiming to be so entitled. |
| |
|
| 29.12 |
Until
such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy
had not occurred. |
Date
of giving notices
| 29.13 | A
notice is given on the date identified in the following table. |
| Method
for giving notices |
|
When
taken to be given |
| Personally |
|
At
the time and date of delivery |
| By
leaving it at the Member’s registered address |
|
At
the time and date it was left |
| By
posting it by prepaid post to the street or postal address of that recipient |
|
48
hours after it was posted |
| By
Electronic Record (other than publication on a website), to recipient’s Electronic address |
|
Within
24 hours after it was sent |
| By
publication on a website |
|
24
hours after the date on which the Member is deemed to have been notified of the publication of the notice or document on the website |
Saving
provision
| 29.14 |
None
of the preceding notice provisions shall derogate from the Articles about the delivery of written resolutions of directors and written
resolutions of Members. |
| 30 |
Authentication
of Electronic Records |
Application
of Articles
| 30.1 |
Without
limitation to any other provision of these Articles, any notice, written resolution or other document under these Articles that is
sent by Electronic means by a Member, or by the Secretary, or by a director or other Officer of the Company, shall be deemed to be
authentic if either Article 30.2 or Article 30.4 applies. |
Authentication
of documents sent by Members by Electronic means
| 30.2 |
An
Electronic Record of a notice, written resolution or other document sent by Electronic means by or on behalf of one or more Members
shall be deemed to be authentic if the following conditions are satisfied: |
| |
(a) |
the
Member or each Member, as the case may be, signed the original document, and for this purpose Original Document includes several
documents in like form signed by one or more of those Members; and |
| |
|
|
| |
(b) |
the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, that Member to an address specified
in accordance with these Articles for the purpose for which it was sent; and |
| |
|
|
| |
(c) |
Article
30.7 does not apply. |
| 30.3 |
For
example, where a sole Member signs a resolution and sends the Electronic Record of the original resolution, or causes it to be sent,
by facsimile transmission to the address in these Articles specified for that purpose, the facsimile copy shall be deemed to be the
written resolution of that Member unless Article 30.7 applies. |
Authentication
of document sent by the Secretary or Officers of the Company by Electronic means
| 30.4 |
An
Electronic Record of a notice, written resolution or other document sent by or on behalf of the Secretary or an Officer or Officers
of the Company shall be deemed to be authentic if the following conditions are satisfied: |
| |
(a) |
the
Secretary or the Officer or each Officer, as the case may be, signed the original document, and for this purpose Original Document
includes several documents in like form signed by the Secretary or one or more of those Officers; and |
| |
|
|
| |
(b) |
the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, the Secretary or that Officer
to an address specified in accordance with these Articles for the purpose for which it was sent; and |
| |
|
|
| |
(c) |
Article
30.7 does not apply. |
This
Article applies whether the document is sent by or on behalf of the Secretary or Officer in his own right or as a representative of the
Company.
| 30.5 |
For
example, where a sole director signs a resolution and scans the resolution, or causes it to be scanned, as a PDF version which is
attached to an email sent to the address in these Articles specified for that purpose, the PDF version shall be deemed to be the
written resolution of that director unless Article 30.7 applies. |
Manner
of signing
| 30.6 |
For
the purposes of these Articles about the authentication of Electronic Records, a document will be taken to be signed if it is signed
manually or in any other manner permitted by these Articles. |
Saving
provision
| 30.7 |
A
notice, written resolution or other document under these Articles will not be deemed to be authentic if the recipient, acting reasonably: |
| |
(a) |
believes
that the signature of the signatory has been altered after the signatory had signed the original document; or |
| |
|
|
| |
(b) |
believes
that the original document, or the Electronic Record of it, was altered, without the approval of the signatory, after the signatory
signed the original document; or |
| |
|
|
| |
(c) |
otherwise
doubts the authenticity of the Electronic Record of the document |
| |
|
|
| |
|
and
the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the
sender may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit. |
| 31 |
Transfer
by way of continuation |
| 31.1 |
The
Company may, by Special Resolution, resolve to be registered by way of continuation in a jurisdiction outside: |
| |
(a) |
the
Cayman Islands; or |
| |
|
|
| |
(b) |
such
other jurisdiction in which it is, for the time being, incorporated, registered or existing. |
| 31.2 |
To
give effect to any resolution made pursuant to the preceding Article, the directors may cause the following: |
| |
(a) |
an
application be made to the Registrar of Companies to deregister the Company in the Cayman Islands or in the other jurisdiction in
which it is for the time being incorporated, registered or existing; and |
| |
|
|
| |
(b) |
all
such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. |
Distribution
of assets in specie
| 32.1 |
If
the Company is wound up, the Members may, subject to these Articles and any other sanction required by the Act, pass a Special Resolution
allowing the liquidator to do either or both of the following: |
| |
(a) |
to
divide in specie among the Members the whole or any part of the assets of the Company and, for that purpose, to value any assets
and to determine how the division shall be carried out as between the Members or different classes of Members; |
| |
|
|
| |
(b) |
to
vest the whole or any part of the assets in trustees for the benefit of Members and those liable to contribute to the winding up. |
No
obligation to accept liability
| 32.2 |
No
Member shall be compelled to accept any assets if an obligation attaches to them. |
The
directors are authorised to present a winding up petition
| 32.3 |
The
directors have the authority to present a petition for the winding up of the Company to the Grand Court of the Cayman Islands on
behalf of the Company without the sanction of a resolution passed at a general meeting. |
| 33 |
Amendment
of Memorandum and Articles |
Power
to change name or amend Memorandum
| 33.1 |
Subject
to the Act, the Company may, by Special Resolution: |
| |
(a) |
change
its name; or |
| |
|
|
| |
(b) |
change
the provisions of its Memorandum with respect to its objects, powers or any other matter specified in the Memorandum. |
Power
to amend these Articles
| 33.2 |
Subject
to the Act and as provided in these Articles, the Company may, by Special Resolution, amend these Articles in whole or in part. |
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