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British Virgin Islands
The BVI Business Companies Act (No. 16 of 2004)
Memorandum and Articles of Association
of
WALCOM GROUP LIMITED
Incorporated this Second Day of March in the Year 2004
Offshore Incorporations Limited
PO Box 957, Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE BVI BUSINESS COMPANIES ACT, 2004
MEMORANDUM OF ASSOCIATION
OF
WALCOM GROUP LIMITED
1 NAME The name of the Company is Walcom Group Limited.
2 COMPANY LIMITED BY SHARES The Company is a company limited by shares. The liability of each member is
limited to the amount from time to time unpaid on such member's shares.
3 REGISTERED OFFICE
The registered office of the Company will be located at the offices of Offshore Incorporations Limited, P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.
4 REGISTERED AGENT The registered agent of the Company will be Offshore Incorporations Limited of P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.
5 GENERAL OBJECTS AND POWERS Subject to Regulation 6 below the objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the BVI Business Companies Act, 2004 (the "Act") or as the same may be revised from time to time, or any other law of the British Virgin Islands.
6 LIMITATIONS ON THE COMPANY'S BUSINESS For the purposes of section 9(4) of the Act the Company has no power to:
(a) carry on banking or trust business, unless it is licensed under the Banks and Trust Companies Act, 1990;
(b) carry on business as an insurance or as a reinsurance company, insurance agent or insurance broker, unless it is licensed under an enactment authorising it to carry on that business;
(c) carry on the business of company management unless it is licensed under the Companies Management Act, 1990;
(d) carry on the business of providing the registered office or the registered agent for companies incorporated in the British Virgin Islands; or
(e) carry on the business as a mutual fund, mutual fund manager or mutual fund administrator unless it is licensed under the Mutual Funds Act, 1996.
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7 AUTHORISED SHARES (a) The Company is authorised to issue 150,000,000 shares with a par value of
HK$0.01.
(b) The Company may issue shares of different classes and series.
(c) The Company may issue fractional shares.
(d) The shares in the Company shall be issued in the currency of Hong Kong.
(e) Each share in the Company confers on the holder:
(i) the right to one vote at a meeting of the members of the Company or on any resolution of the members of the Company;
(ii) the right to an equal share in any dividend paid by the Company in accordance with the Act; and
(iii) the right to an equal share in the distribution of the surplus assets of the Company.
(e) The shares shall be subject to redemption, purchase or acquisition by the Company for fair value.
8 VARIATION OF CLASS RIGHTS
If at any time the authorised capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound up, be varied with the consent in writing of the holders of not less than three-fourths of the issued shares of that class or series and of the holders of not less than three-fourths of the issued shares of any other class or series of shares which may be affected by such variation.
9 REGISTERED SHARES ONLY Shares in the Company may only be issued as registered shares and the Company is not authorised to issue bearer shares. Registered shares may not be exchanged for bearer shares or converted to bearer shares.
10 TREASURY SHARES
The Company may hold shares that have been purchased, redeemed or otherwise acquired under section 59 of the Act as Treasury Shares.
11 AMENDMENTS Subject to the provisions of the Act, the Company shall by resolution of the directors or members have the power to amend or modify any of the conditions contained in this Memorandum of Association.
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We, OFFSHORE INCORPORATIONS LIMITED of P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands, for the purpose of a Business Company under the laws of the British Virgin Islands hereby subscribe our name to this Memorandum of Association the second day of March in the year 2004.
SUBSCRIBER OFFSHORE INCORPORATIONS LIMITED
_______________
Name:
Authorised Signatory
In the presence of: WITNESS _______________
Name:
Address:
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE BVI BUSINESS COMPANIES ACT, 2004
ARTICLES OF ASSOCIATION
OF
WALCOM GROUP LIMITED
INTERPRETATION
1 The following Articles shall constitute the Articles of the Company. In these Articles, words and expressions defined in the Act shall have the same meaning and, unless otherwise required by the context, the singular shall include the plural and vice versa, the masculine shall include the feminine and the neuter and references to persons shall include corporations and all legal entities capable of having a legal existence. In addition, the words and expressions standing in the first column of the following table shall bear the meanings set opposite them respectively in the second column thereof.
'Act' the BVI Business Companies Act (No. 16 of 2004).
‘Approved Depositary’ a custodian or other person (or a nominee for such custodian or other person) appointed under contractual arrangements with the Company or other arrangements approved by the Board under which the custodian or other person or nominee holds or is interested in shares of the Company or rights or interests in shares of the Company and issues securities or other documents of title or otherwise evidencing the entitlement of the holder to or to receive the shares, rights or interests, provided and to the extent that the arrangements have been approved by the Board for the purposes of these Articles and shall include, where approved by the Board, the trustees (acting in their capacity as such) of an employees' share scheme established by the Company or another scheme or arrangements principally for the benefit of employees of the Company, its subsidiaries or subsidiary undertakings which has been approved by the Company in general meeting.
'Articles' these Articles of Association.
‘Board’ the board of directors from time to time of the Company or the directors present at a meeting of the directors at which a quorum is present.
‘capital’ the sum of the aggregate par value of all outstanding shares with par value of the Company and shares with par value held by the Company as treasury shares plus:
(a) the aggregate of the amounts designated as capital of all outstanding shares without par value of the Company and shares without par value held by the Company as treasury shares; and
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(b) the amounts as are from time to time transferred from surplus to capital by a resolution of directors.
'Company' Walcom Group Limited.
'Extraordinary Resolution' a resolution that has been passed by a majority of not less than two-thirds of members or their proxies at a general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been given.
‘member’ a person who holds shares in the Company.
'Memorandum' the Memorandum of Association of the Company from time to time.
‘Operator’ a person approved by the United Kingdom Treasury under the Regulations as Operator of a Relevant System.
‘participating security’ a security title to units which is permitted by an Operator to be transferred by means of a Relevant System.
‘person’ an individual, a corporation, a trust, the estate of a deceased individual, a partnership or an unincorporated association of persons.
‘Regulations’ the English Uncertificated Securities Regulations 2001
(SI 2001 No. 3755) and any modifications to them and any substitutions for them for the time being in force.
‘Relevant System’ a computer-based system, and procedures, which enable title to units of a security to be evidenced and transferred without a written instrument, and which facilitate supplementary and incidental matters.
‘resolution of directors’ (a) a resolution approved at a duly convened and constituted meeting of directors of the Company or of a committee of directors of the Company by the affirmative vote of a simple majority of the directors present at the meeting who voted and did not abstain; or
(b) a resolution consented to in writing by a majority
of the directors or a majority of the members of a committee of directors, unless there are only two directors or two members of a committee of directors in which case both directors or both members of the committee of directors must
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consent;
except that where a director is given more than one vote, he shall be counted by the member of votes he casts for the purpose of establishing a majority.
‘resolution of members’ (a) a resolution approved at a duly convened and
constituted meeting of the members of the Company by the affirmative vote of -
(i) a simple majority of the votes of the shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or
(ii) a simple majority of the votes of each class or series of shares which were present at the meeting and entitled to vote thereon as a class or series and were voted and not abstained and of a simple majority of the votes of the remaining shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or
(b) a resolution consented to in writing by -
(i) an absolute majority of the votes of each class or series of shares entitled to vote thereon; or
(ii) an absolute majority of the votes of each class or series and of an absolute majority of the votes of the remaining shares entitled to vote thereon.
‘securities’ shares and debt obligations of every kind, and options, warrants and rights to acquire shares, or debt obligations.
‘surplus’ the excess, if any, at the time of the determination of the total assets of the Company over the aggregate of its total liabilities, as shown in its books of account, plus the Company’s capital.
‘the Memorandum’ the Memorandum of Association of the Company as originally framed or as from time to time amended.
‘the Seal’ any Seal which has been duly adopted as the Seal of the Company.
‘these Articles’ the Articles of Association of the Company as originally
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framed or as from time to time amended.
‘treasury shares’ shares in the Company that were previously issued but were repurchased, redeemed or otherwise acquired by the Company and not cancelled.
SHARES
2 Every person whose name is entered as a member in the share register, being the holder of registered shares, shall without payment, be entitled to a certificate signed by a director or under the common seal of the Company with or without the signature of any director or officer of the Company specifying the share or shares held and the par value thereof, provided that in respect of shares held jointly by several persons, the Company shall not be bound to issue more than one certificate and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all.
3 If a certificate is worn out or lost it may be renewed on production of the worn out certificate, or on satisfactory proof of its loss together with such indemnity as the directors may reasonably require. Any member receiving a share certificate shall indemnify and hold the Company and its officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession of such a certificate.
SHARE CAPITAL AND VARIATION OF RIGHTS
4 Subject to the provisions of these Articles, and any resolution of members, the unissued shares of the Company shall be at the disposal of the directors who may, without limiting or affecting any rights previously conferred on the holders of any existing shares or class or series of shares, offer, allot, grant options over or otherwise dispose of shares to such persons, at such times and upon such terms and conditions as the Company may by resolution of directors determine.
5 No share in the Company may be issued until the consideration in respect thereof is fully paid, and, when issued, the share is for all purposes fully paid and non-assessable save that a share issued for a promissory note or other written obligation for payment of a debt may be issued subject to forfeiture in the manner prescribed in these Articles.
6 Shares in the Company may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine, except that the amount shall not be less than the par value, and, in the absence of fraud, the decision of the directors as to the value of the consideration received by the Company in respect of the issue is conclusive unless a question of law is involved. The consideration in respect of the shares constitutes capital to the extent of the par value and the excess constitutes surplus.
7 A share issued by the Company upon conversion of or in exchange for another share or a debt obligation or other security in the Company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the Company in respect of the other share, debt obligation or security.
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8 Treasury shares, subject to the Act, may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with these Articles) as the Company may by resolution of directors determine.
9 If, as a result of a consolidation or sub-division of shares, members would become entitled to fractions of a share, the Board may deal with the fractions as it thinks fit and, in particular, may sell the shares representing the fractions to a person (including, subject to the provisions of the Act, the Company) and distribute the net proceeds of sale in due proportion among those members, but the Company is not obliged to distribute and may retain for itself net proceeds of less than £3 to which a member would otherwise be entitled. The Board may authorise a person to transfer or deliver 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 his title to the shares be affected by an irregularity in, or invalidity of, the proceedings relating to the sale.
10 Subject to the provisions of the Act, the Company may purchase its own shares (including redeemable shares) at any price but, if shares are in issue which are listed on the Official List of the London Stock Exchange or traded on AIM (a market operated by the London Stock Exchange) and are convertible into, or carry a right to subscribe for, shares of the class to be purchased, the Company may not purchase them without the prior sanction of an Extraordinary Resolution passed at a separate meeting of the holders of the shares which are convertible or carry that right to subscribe.
11 Neither the Company nor the Board shall be required to select the shares to be purchased rateably or in another particular manner as between the holders of shares of the same class or as between them and the holders of shares of another class or in accordance with the rights as to dividends or capital conferred by a class of shares.
12 Shares that the Company purchases, redeems or otherwise acquires pursuant to the preceding Article may be cancelled or held as treasury shares except to the extent that such shares are in excess of 80 per cent of the issued shares of the Company in which case they shall be cancelled but they shall be available for reissue.
13 Where shares in the Company are held by the Company as treasury shares or are held by another company of which the Company holds, directly or indirectly, shares having more than 50 per cent of the votes in the election of directors of the other company, such shares of the Company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for any purpose except for purposes of determining the capital of the Company.
14 The Company may purchase, redeem or otherwise acquire its shares at a price lower than the fair value if permitted by, and then only in accordance with, the terms of –
(a) the Memorandum or these Articles; or
(b) a written agreement for the subscription for the shares to be purchased, redeemed or otherwise acquired.
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15 The Company may by a resolution of directors include in the computation of surplus for any purpose the unrealised appreciation of the assets of the Company, and, in the absence of fraud, the decision of the directors as to the value of the assets is conclusive, unless a question of law is involved.
16 Subject to the provisions of the Act, all or any of the rights attached to a class of shares may (whether or not the Company is being wound up) be varied with the consent in writing of the holders of not less than three-quarters of the issued shares of that class, or with the sanction of an Extraordinary Resolution passed at a separate general meeting of the holders of those shares.
17 The rights attached to shares of a class (unless the rights otherwise expressly provide):
(a) are deemed to be varied by a reduction of the capital paid up on them or by the creation or issue of further shares ranking in priority for payment of a dividend or in respect of capital, or which confer more favourable voting rights on the holders;
(b) are not deemed to be varied by the creation or issue of further shares ranking pari passu with or subsequent to them; and
(c) are not deemed to be varied by a purchase or redemption by the Company of its own shares.
18 The provisions of these Articles relating to general meetings shall apply to every separate general meeting of the holders of a class of shares.
MORTGAGES AND CHARGES OF REGISTERED SHARES
19 Members may mortgage or charge their registered shares in the Company and upon satisfactory evidence thereof the Company shall give effect to the terms of any valid mortgage or charge except insofar as it may conflict with any requirements herein contained for consent to the transfer of shares.
FORFEITURE
20 When shares issued for a promissory note or other written obligation for payment of a debt have been issued subject to forfeiture, the provisions set forth in the following four regulations shall apply.
21 Written notice specifying a further date for payment to be made and the shares in respect of which payment is to be made shall be served on the member who defaults in making payment pursuant to a promissory note or other written obligations to pay a debt.
22 The written notice specifying a date for payment shall –
(a) name a further date not earlier than the expiration of fourteen days from the date of service of the notice on or before which payment required by the notice is to be made; and
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(b) contain a statement that in the event of non-payment at or before the time named in the notice the shares, or any of them, in respect of which payment is outstanding will be liable to be forfeited.
23 Where a written notice has been issued and the requirements have not been complied with within the prescribed time, the directors may at any time before tender of payment forfeit and cancel the shares to which the notice relates.
24 The Company is under no obligation to refund any monies to the member whose shares have been forfeited and cancelled pursuant to these provisions. Upon forfeiture and cancellation of the shares the member is discharged from any further obligation to the Company with respect to the shares forfeited and cancelled.
LIEN
25 The Company shall have a first and paramount lien on every share issued for a promissory note or for any other binding obligation to contribute money or property or any combination thereof to the Company, and the Company shall also have a first and paramount lien on every share standing registered in the name of a member, whether as a sole registered shareholder or jointly with any other person or persons, for all the debts and liabilities of such member or his estate to the Company, whether the same shall have been incurred before or after notice to the Company of any interest of any person other than such member, and whether the time for the payment or discharge of the same shall have actually arrived or not, and notwithstanding that the same are joint debts or liabilities of such member or his estate and any other person, whether a member of the Company or not. The Company’s lien on a share shall extend to all dividends payable thereon. The directors may at any time either generally, or in any particular case, waive any lien that has arisen or declare any share to be wholly or in part exempt from the provisions of this article.
26 In the absence of express provisions regarding sale in the promissory note or other binding obligation to contribute money or property, the Company may sell, in such manner as the directors may by resolution of directors determine, any share on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of 21 days after a notice in writing, stating and demanding payment of the sum presently payable and giving notice of the intention to sell in default of such payment, has been served on the holder for the time being of the share.
27 The net proceeds of the sale by the Company of any shares on which it has a lien shall be applied in or towards payment or discharge of the promissory note or other binding obligation to contribute money or property or any combination thereof in respect of which the lien exists so far as the same is presently payable and any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon the share prior to the sale) be paid to the holder of the share immediately before such sale. For giving effect to any such sale the directors may authorise some person to transfer the share sold to the purchaser thereof. The purchaser shall be registered as the holder of the share and he shall not be bound to see to the application of the purchase money, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the sale.
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TRANSFER OF SHARES
28 Subject to the Act to any limitations in the Memorandum and these Articles, registered shares in the Company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, but in the absence of such written instrument of transfer the directors may accept such evidence of a transfer of shares as they consider appropriate.
29 Subject to the Act and to any limitations in the Memorandum and these Articles, the Company must on the application of the transferor or transferee of a registered share in the Company enter in the share register the name of the transferee of the share save that the registration of transfers may be suspended and the share register closed at such times and for such periods as the Company may from time to time by resolution of directors determine provided always that such registration shall not be suspended and the share register closed for more than 30 days in any period of twelve months.
30 Where any class of shares is, for the time being, a participating security, title to shares of that class which are recorded on an Operator register of members as being held in uncertificated form may be transferred by means of the Relevant System concerned.
31 No fee shall be charged by the Company for the registration of any instrument of transfer or other document relating to or affecting the title to any share.
32 Subject to the Regulations, the registration of transfers of shares or any class of shares may be suspended at such times and for such periods (not exceeding thirty days in any year) as the directors may determine.
33 If the directors exercise any power given to them by these Articles to sell, re-allot or otherwise dispose of a share:
(a) the person to whom the share is transferred or re-allotted shall be registered as the holder of the share and shall not be bound to see to the application of the consideration (if any) for its disposal and his title to the share shall not be affected by any irregularity in or invalidity of the proceedings relating to the disposal; and
(b) a statutory declaration by a director or the secretary of the Company that the share has been sold, re-allotted or otherwise disposed of on a specified date in accordance with the provisions of these Articles shall be conclusive evidence of the facts stated in the declaration against any person claiming to be entitled to the share.
TRANSMISSION OF SHARES
34 Subject to Sections 52(2) and 53 of the Act, the executor or administrator of the estate of a deceased member, the guardian of an incompetent member or the trustee of a bankrupt member shall be the only person recognized by the Company as having any title to his share, save that and only in the event of death, incompetence or bankruptcy of any member or members of the Company as a consequence of which the Company no longer has any directors or members, then upon the production of any documentation which is reasonable evidence of the applicant being entitled to:
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(a) a grant of probate of the deceased's will, or grant of letters of administration of the deceased's estate, or confirmation of the appointment as executor or administrator (as the case may be), of a deceased member's estate; or
(b) the appointment of a guardian of an incompetent member; or
(c) the appointment as trustee of a bankrupt member; or
(d) upon production of any other reasonable evidence of the applicant's beneficial ownership of, or entitlement to the shares,
to the Company's registered agent in the British Virgin Islands together with (if so requested by the registered agent) a notarised copy of the share certificate(s) of the deceased, incompetent or bankrupt member, an indemnity in favour of the registered agent and appropriate legal advice in respect of any document issued by a foreign court, then the administrator, executor, guardian or trustee in bankruptcy (as the case may be) notwithstanding that their name has not been entered in the share register of the Company, may by written request of the applicant, endorsed with written approval by the registered agent, be appointed a director of the Company or entered in the share register as the legal and or beneficial owner of the shares.
35 The production to the Company of any document which is reasonable evidence of:
(a) grant of probate of the will, or grant of letters of administration of the estate, or confirmation of the appointment as executor, of a deceased member; or
(b) the appointment of a guardian of an incompetent member; or
(c) the trustee of a bankrupt member; or
(d) the applicants legal and or beneficial ownership of the shares,
shall be accepted by the Company even if the deceased, incompetent member or bankrupt member is domiciled outside the British Virgin Islands if the document is issued by a foreign court which had competent jurisdiction in the matter. For the purposes of establishing whether or not a foreign court had competent jurisdiction in such a matter the directors may obtain appropriate legal advice. The directors may also require an indemnity to be given by the executor, administrator, guardian or trustee in bankruptcy.
36 Any person becoming entitled by operation of law or otherwise to a share or shares in consequence of the death, incompetence or bankruptcy of any member may be registered as a member upon such evidence being produced as may reasonably be required by the directors. An application by any such person to be registered as a member shall for all purposes be deemed to be a transfer of shares of the deceased, incompetent or bankrupt member and the directors shall treat it as such.
37 Any person who has become entitled to a share or shares in consequence of the death, incompetence or bankruptcy of any member may, instead of being registered himself, request in writing that some person to be named by him be registered as the transferee of such share or shares and such request shall likewise be treated as if it were a transfer.
38 What amounts to incompetence on the part of a person is a matter to be determined by the court having regard to all the relevant evidence and the circumstances of the case.
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TAKEOVER OFFERS FOR THE COMPANY
39 Where any person is or becomes interested, whether as a result of transactions over a period of time or not, in shares in the capital of the Company in circumstances in which he would be obliged to make or extend an offer or offers to the holders of shares or holders of other securities or rights in the Company as referred to in article 41 below of the Company under the Rules for the time being of the City Code on Takeovers and Mergers of the United Kingdom of Great Britain and Northern Ireland (the "City Code", which expression shall include any revision or modification thereof or any statutory replacement therefor) issued or regulated by the Panel on Takeovers and Mergers (the "Panel", which expression shall include any body which succeeds to the functions of the said Panel) as if the Company was a company to which the City Code applied, the directors may serve upon that person a notice requiring him to make or extend an offer or offers in writing in accordance with the requirements of the City Code in all respects as if the City Code did apply to the Company but so that references in the City Code to the Panel shall be construed, for the purposes of this article, as if they were references to the Board.
40 The Board may refuse to register any transfer of shares where any person has acquired or proposes to acquire or otherwise becomes interested in shares or other securities of the Company in circumstances in which he would be obliged, if the Company was a company to which the City Code applied, to make or extend an offer or offers to the holders of shares or holders of other securities or rights referred to in Article 42 below of the Company under the Rules for the time being of the City Code, but that person has failed to comply with such Rules.
41 If a notice served under article 39 requiring a disposal of shares is not complied with in accordance with its terms and has not been withdrawn, each holder of shares hereby appoints the Company its attorney-in-fact, which appointment, being coupled with an interest shall be irrevocable, for the purposes of enabling the directors, at their discretion and so far as they are able, to dispose of shares to which such notice relates at the best price reasonably obtainable in all the circumstances in which case they shall give written notice of such disposal to the person or persons on whom such notice was served. Except as hereinafter provided such disposal shall be completed as soon as reasonably practicable after the giving of a notice under this article 41 as may be in the opinion of the directors be consistent with obtaining the best price reasonably obtainable and in any event within 30 days of expiry of such notice provided that a disposal under this article 41 shall be suspended during the period when dealings by the directors of the Company's shares are not permitted either by law or by the regulation of any stock exchange upon which those shares of the Company which are to be disposed of are listed, but any disposal and under this article which is suspended as aforesaid shall be completed within 30 days after expiry of the period of such suspension and provided further that neither the Company nor the directors shall be liable to any holder or any person having an interest in any share or other person for failing to obtain the best price so long as the directors act in good faith within the period specified above.
42 For the purpose of affecting any disposal under article 41 above, the directors may authorise in writing any officer or employee of the Company to execute any necessary transfer on behalf of any holder and may issue a new certificate to the purchaser. The net proceeds of such disposal shall be received by the Company, whose receipt shall
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be a good discharge for the purchase money, and shall be paid (without any interest being payable thereon) to the former holder upon surrender by him of the certificate in respect of the shares sold and formerly held by him.
43 The provisions of these Articles relating to the protection of purchasers of shares sold under a lien or upon forfeiture shall apply mutatis mutandis to disposals under this article.
44 Any notice served under article 39 above may also require the person on whom it is served to execute an undertaking under seal in favour of the directors (as trustees for all the holders of shares in the capital of the Company) and in a form satisfactory to the directors to observe and perform the rules and requirements of the City Code as if the same were applicable to the Company and in the manner prescribed in article 39 above.
45 Where any person is interested in shares in the Company, whether as a result of a series of transactions over a period of time or not, which (taken together with shares held or acquired by persons acting in concert with him) represent 30 per cent or more of all the shares for the time being in issue and the directors determine that it is not expedient to serve a notice under article 39 above or if any person upon whom such a notice is served fails within thirty days to comply with the same, the directors may serve upon that person a notice requiring him to make an offer in writing (the "Offer"), within 30 days of the date of such notice on the basis set out in the following articles, to the holders of every class of share capital of the Company (whether voting or non-voting) to purchase all such shares for cash on terms that payment in full therefor will be made within 21 days of the Offer becoming or being declared unconditional in all respects.
46 Where the directors serve a notice upon any person in accordance with article 39 above, they may also include in that notice a requirement that such person shall make an appropriate offer or proposal in writing to the holders of every class of securities convertible into, or of rights to subscribe for, share capital of the Company ("Convertible Offer") (whether such share capital is voting or non-voting). The Convertible Offer shall be made at the same time as the Offer. The terms of the Convertible Offer shall be such terms as the directors, in their absolute discretion, consider to be fair and reasonable having regard to the terms of the Offer and the directors shall notify such terms to the person specified in article 45 above (the "Offeror"). The Convertible Offer shall be conditional only upon the Offer becoming or being declared unconditional in all respects.
47 In addition to the Offeror, the directors may require, in their absolution discretion, each of the principal members of a group of persons acting in concert with him and who appear to be interested in any shares in, or convertible securities of, the Company to make the Offer and/or the Convertible Offer. For the purposes of this article, persons shall be deemed to be acting in concert if, pursuant to an agreement or understanding (whether formal or informal) they actively co-operate in acquiring or seeking to acquire shares in, or convertible securities of, the Company.
48 Unless the directors otherwise agree, an offer made under articles 45, 46 or 47 must, in respect of each class of share capital or convertible securities involved, be in cash or be accompanied by a cash alternative offer at not less than
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the highest price paid by the Offeror or any person acting in concert with it for shares or convertible securities of that class within the preceding 12 months. If such price cannot be ascertained by the directors or if such shares or convertible securities have been acquired other than for cash pursuant to a bargain made on any recognised stock exchange or if the directors consider that such highest price is, for any reason, inappropriate, unfair or unreasonable having regard to the size and timing of the relevant purchases, the relationship (if any) between the seller and purchaser of such shares or convertible securities or the number of shares or convertible securities purchased in the preceding 12 months, the directors may, in any such case, fix the price at which the Offer, the Convertible Offer or the cash alternative offer is to be made. The cash Offer, the cash Convertible Offer or the cash alternative offer must, in each case, remain open for not less than 14 days after the date on which the Offer or the Convertible Offer, as the case may be, has become or is declared to be unconditional as to acceptances.
49 Any person who makes or is about to make or who is or can be required to make an offer under this article or who has made such an offer which has lapsed, shall observe and shall procure that any persons acting in concert with him shall observe the rules and requirements of the City Code both in letter and in spirit prior to, during the pursuit of and, if applicable, after the failure of such an offer.
50 For the purposes of this article 50, subject to articles 51 to 54, any questions or disputes arising out of the grant of consent by the directors, comparability of offers, the terms of offers, any question as to whether any person shall be regarded as acting in concert with another, any question regarding the interpretation or application of the City Code and the meaning of any terms or phrases used in this article or the City Code shall be determined by the directors in their absolute discretion.
51 For the purposes of articles 39 to 66 a person is deemed interested in any shares in which his spouse or any infant child or stepchild of his is interested.
52 For the purposes of articles 39 to 66, a person is deemed interested in shares if a body corporate is interested in them and:
(a) that body or its directors are accustomed to act in accordance with his directions or instructions, or
(b) he is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of that body corporate.
53 Where a person is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of a body corporate and that body corporate is entitled to exercise or control the exercise of any of the voting power at general meetings of another body corporate ("the effective voting power") then, for purposes of article 52(b), the effective voting power is taken as exercisable by that person.
54 For purposes of articles 52 and 53, a person is entitled to exercise or control the exercise of voting power if:
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(a) he has a right (whether subject to conditions or not) the exercise of which would make him so entitled; or
(b) he is under an obligation (whether or not so subject) the fulfilment of which would make him so entitled.
SUSPENSION OF RIGHTS WHERE NON-DISCLOSURE OF INTERESTS
55 For the purposes of this article:
(a) "Disclosure Notice" means a notice issued by the Company requiring the disclosure of interests in shares;
(b) "Restrictions" means one or more of the restrictions referred to in article 57;
(c) “Specified Shares" means the shares specified in the Disclosure Notice; and
(d) a person shall be treated as appearing to be interested in shares if:
(i) the person has been named in response to a Disclosure Notice as being interested;
(ii) in response to a Disclosure Notice, the member holding the Specified Shares or another person appearing to be interested in them has failed to establish the identities of those who are interested and (taking into account the response and other relevant information) the Company has reasonable cause to believe that the person in question is or may be interested in the Specified Shares; or
(iii) the member holding the shares is an Approved Depositary and the person in question has notified the Approved Depositary that he is so interested.
56 Despite anything in these Articles to the contrary, if:
(a) a Disclosure Notice has been served on a member or a person appearing to be interested in the Specified Shares; and
(b) the Company has not received the information required in respect of the Specified Shares within a period of 14 days (subject as provided in articles 60 and 61) after the service of the Disclosure Notice;
(c) then the Board may determine that the member holding the Specified Shares is subject to the Restrictions. The Company shall, as soon as practicable after the determination, give notice to the relevant member stating that (until such time as the Board determines otherwise under article 58) the Specified Shares shall be subject to the Restrictions stated in the notice.
57 Subject to articles 58, 60 and 61, the Restrictions which the Board determines applicable to Specified Shares shall be one or more (as determined by the Board) of the following:
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(a) the member holding the Specified Shares shall not be entitled, in respect of the Specified Shares, to be present or to vote (either personally, or by proxy or otherwise) at a general meeting or at a separate general meeting of the holders of a class of shares, or on a poll or to exercise any other right in relation to a general meeting or a separate class meeting;
(b) no transfer of the Specified Shares shall be effective or shall be recognised by the Company; and
(c) (subject to article 59), no dividend or other sums which would otherwise be payable on or in respect of the Specified Shares shall be paid to the member holding the Specified Shares and, in circumstances where an offer of the right to elect to receive ordinary shares instead of cash in respect of a dividend is or has been made, an election made in respect of the Specified Shares shall not be effective.
58 The Board may determine that one or more Restrictions imposed on Specified Shares shall cease to apply at any time. On receipt by the Company of the information required in the relevant Disclosure Notice, the Board shall, within 7 days of receipt, release all Restrictions imposed on the Specified Shares. In the event of receipt by the Company of a duly completed instrument of transfer relating to the Specified Shares which, save for the Restrictions, would:
(a) effect a sale of the Specified Shares on a stock exchange on which the Company's shares are normally dealt in;
(b) confirm the acceptance of an offer to acquire all the shares or all the shares of any class or classes in the Company, (other than shares which at the date of the offer are already held by the offeror), being an offer on terms which are the same in relation to all the shares to which the offer relates or, where those shares include shares of different classes, in relation to all the shares of each class; or
(c) effect a sale which is shown to the satisfaction of the Board to be a bona fide sale of the whole of the beneficial interest in the shares to a person who is unconnected with the member or with another person appearing to be interested in the shares.
Then the Board shall release the Restrictions applicable to the Specified Shares.
59 Where dividends or other sums payable on Specified Shares are not paid as a result of Restrictions having been imposed, the dividends or other sums shall accrue and be payable (without interest) on the relevant Restriction ceasing to apply.
60 On a determination of a release of a Restriction under article 58, the Board shall notify the purported transferee as soon as reasonably practicable and any person may make representations in writing to the Board concerning the determination. Neither the Company nor the Board shall in any event be liable to any person as a result of the Board having imposed Restrictions, or failed to determine that Restrictions shall cease to apply, if the Board has acted in good faith.
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61 Where the Specified Shares represent less than 0.25 per cent. (in nominal value) of the shares of the same class as the Specified Shares in issue at the date of issue of the relevant Disclosure Notice then:
(a) the period of 14 days referred to in article 56(b) shall be extended to 28 days; and
(b) the Board may only impose the Restriction referred to in article 56(a).
62 Shares issued in right of Specified Shares which are for the time being subject to particular Restrictions shall, on issue, become subject to the same Restrictions as the relevant Specified Shares. For this purpose, shares which the Company procures to be offered to shareholders pro rata (or pro rata ignoring fractional entitlements and shares not offered to certain members by reason of legal or practical problems associated with offering shares outside the United Kingdom) shall be treated as shares issued in right of Specified Shares.
63 The Board may, at its discretion, suspend, in whole or in part, the imposition of a Restriction, either permanently or for a given period, and may pay a dividend or other sums payable in respect of the Specified Shares to a trustee (subject to the Restriction referred to in article 57(c)). Notice of suspension, specifying the Restrictions suspended and the period of suspension, shall be given by the Company to the relevant holder as soon as practicable.
64 If a person appearing to be interested in shares has been served with a Disclosure Notice and those shares are held by an Approved Depositary, the provisions of this article shall be treated as applying only to those shares held by the Approved Depositary in which such person appears to be interested and not (by virtue of that person's apparent interest) to other shares held by the Approved Depositary.
65 If the member on which a Disclosure Notice is served is an Approved Depositary acting in its capacity as such, the obligations of the Approved Depositary as a member of the Company shall be limited to disclosing information recorded by it relating to a person appearing to be interested in the shares held by it under the arrangements by which it was appointed as an Approved Depositary.
66 Nothing in this article limits or restricts the powers of the Company or the Board under the Act.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
67 The Company may by a resolution of directors amend the Memorandum to increase or reduce its authorised capital and in connection therewith the Company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any such shares or effect any combination of the foregoing.
68 The Company may amend the Memorandum to –
(a) divide the shares, including issued shares, of a class or series into a larger number of shares of the same class or series; or
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(b) combine the shares, including issued shares, of a class or series into a smaller number of shares of the same class or series;
provided, however, that where shares are divided or combined under (a) or (b) of this regulation, the aggregate par value of the new shares must be equal to the aggregate par value of the original shares.
69 The capital of the Company may by a resolution of directors be increased by transferring an amount of the surplus of the Company to capital.
70 Subject to the provisions of the two next succeeding articles, the capital of the Company may by resolution of directors be reduced by transferring an amount of the capital of the Company to surplus.
71 No reduction of capital shall be effected that reduces the capital of the Company to an amount that immediately after the reduction is less than the aggregate par value of all outstanding shares with par value and all shares with par value held by the Company as treasury shares and the aggregate of the amounts designated as capital of all outstanding shares without par value and all shares without par value held by the Company, as treasury shares that are entitled to a preference, if any, in the assets of the Company upon liquidation of the Company.
72 No reduction of capital shall be effected unless the directors determine that immediately after the reduction the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and that the realisable assets of the Company will not be less than its total liabilities, other than deferred taxes, as shown in the books of the Company and its remaining capital, and, in the absence of fraud, the decision of the directors as to the realisable value of the assets of the Company is conclusive, unless a question of law is involved.
MEETINGS OF MEMBERS
73 The directors may convene meetings of the members of the Company at such times and in such manner and places as the directors consider necessary or desirable, and they shall convene such a meeting upon the written request of members entitled to exercise at least ten (10) percent of the voting rights in respect of the matter for which the meeting is requested.
74 Seven (7) days notice at the least specifying the place, the day and the hour of the meeting and general nature of the business to be conducted shall be given in the manner hereinafter mentioned to such persons whose names on the date the notice is given appear as members in the share register of the Company and are entitled to vote at the meeting.
75 Notwithstanding article 74, a meeting of members held in contravention of the requirement to give notice is valid if members holding a ninety (90) percent majority of:
(a) the total voting rights on all the matters to be considered at the meeting; or
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(b) the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with an absolute majority of the remaining votes,
have waived notice of the meeting and, for this purpose, the presence of a member at the meeting shall be deemed to constitute waiver on his part.
76 The inadvertent failure of the directors to give notice of a meeting to a member or the fact that a member has not received the notice, shall not invalidate the meeting.
PROCEEDINGS AT MEETINGS OF MEMBERS
77 No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. A quorum shall be two persons (or in the case of a member being a corporation, its duly authorised representative) in person or by proxy.
78 If, within half an hour from the time appointed for the meeting (or such longer period as the chairman of the meeting may allow), a quorum is not present, or if during the meeting a quorum ceases to be present, the meeting, if convened on the requisition of members, shall be dissolved, and, in any other case, it shall stand adjourned to the same day in the next week at the same time and place, or to such other day, time and place as the Chairman may determine. If at the adjourned meeting a quorum is not present within half an hour after the time appointed for the meeting, any two persons entitled to be counted in a quorum at the meeting shall be a quorum.
79 At every meeting the members present shall choose someone of their number to be the chairman (the "Chairman"). If the members are unable to choose a Chairman for any reason, then the person representing the greatest number of voting shares present at the meeting shall preside as Chairman failing which the oldest individual member present at the meeting or failing any member personally attending the meeting, the proxy present at the meeting representing the oldest member of the Company, shall take the chair.
80 The Chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
81 At any meeting a resolution put to the vote of the meeting shall be decided on a show of hands by a simple majority unless a poll is (before or on the declaration of the result of the show of hands) demanded:
(a) by the Chairman; or
(b) by any member present in person or by proxy and holding not less than one tenth of the total voting shares issued by the Company and having the right to vote at the meeting.
82 Unless a poll be so demanded, a declaration by the Chairman that a resolution has, on a show of hands been carried, and an entry to that effect in the book containing the minutes of the proceedings of the Company, shall be sufficient evidence of the fact,
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without proof of the number or proportion of the votes recorded in favour of or against such resolution.
83 If a poll is duly demanded it shall be taken in such manner as the Chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand for a poll may be withdrawn.
84 In the case of an equality of votes, whether on a show of hands, or on a poll, the Chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.
VOTES OF MEMBERS
85 At any meeting of members whether on a show of hands or on a poll every holder of a voting share present in person or by proxy shall have one vote for every voting share of which he is the holder.
86 Subject to the Memorandum or these Articles, an action that may be taken by members of the Company at a meeting of members may also be taken by a resolution of members consented to in writing or by telex, telegram, cable or other written electronic communication, without the need for any notice.
87 If a committee is appointed for any member who is of unsound mind, that member may vote by such committee.
88 If two or more persons are jointly entitled to a registered share or shares and if more than one of such persons shall vote in person or by proxy at any meeting of members or in accordance with the terms of article 85, the vote of that person whose name appears first among such voting joint holders in the share register shall alone be counted.
89 Votes may be given either personally or by proxy.
90 The instrument appointing a proxy shall be produced at the place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
91 Subject to article 92 below, an instrument appointing a proxy shall be in such form as the Chairman of the meeting shall accept as properly evidencing the wishes of the member appointing the proxy.
92 The instrument appointing a proxy shall be in writing under the hand of the appointer unless the appointer is a corporation or other form of legal entity other than one or more individuals holding as joint owner in which case the instrument appointing a proxy shall be in writing under the hand of an individual duly authorised by such corporation or legal entity to execute the same. The Chairman of any meeting at which a vote is cast by proxy so authorised may call for a notarially certified copy of such authority which shall be produced within seven days of being so requested failing which the vote or votes cast by such proxy shall be disregarded.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
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93 Any corporation or other form of corporate legal entity which is a member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the members or any class of members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual member of the Company.
DIRECTORS
94 The minimum number of directors shall be one and the maximum number shall be twelve.
95 The first directors of the Company shall be appointed by the subscriber to the Memorandum. Thereafter, the directors shall be elected by the members for such term as the members may determine.
96 A vacancy in the board of directors may be filled by a resolution of members or a resolution passed by the majority of the remaining directors.
97 A director shall not require a share qualification, but nevertheless shall be entitled to attend and speak at any meeting of the members and at any separate meeting of the holders of any class of shares in the Company.
98 A director, by writing under his hand deposited at the registered office of the Company, may from time to time appoint another director or another person to be his alternate. Every such alternate so notified to the Company shall be entitled to be given notice of meetings of the directors and to attend and vote as a director at any such meeting at which the director appointing him is not personally present and generally at such meeting to have and exercise all the powers, rights, duties and authorities of the director appointing him. Every such alternate shall be deemed to be an officer of the Company and shall not be deemed to be an agent of the director appointing him. If undue delay or difficulty would be occasioned by giving notice to a director of a resolution of which his approval is sought in accordance with article 120 his alternate (if any) shall be entitled to signify approval of the same on behalf of that director. The remuneration of an alternate shall be payable out of the remuneration payable to the director appointing him, and shall consist of such portion of the last mentioned remuneration as shall be agreed between such alternate and the director appointing him. A director by writing under his hand deposited at the registered office of the Company may at any time revoke the appointment of an alternate appointed by him. If a director shall die or cease to hold the office of director, the appointment of his alternate shall thereupon cease and terminate.
99 The directors may, by resolution, fix the emolument of directors in respect of services rendered or to be rendered in any capacity to the Company. The directors may also be paid such travelling, hotel and other expenses properly incurred by them in connection with the business of the Company as shall be approved by resolution of the directors.
100 Any director who, by request, goes or resides abroad for any purposes of the Company, or who performs services which in the opinion of the Board go beyond the ordinary duties of a director, may be paid such extra remuneration (whether by way of
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salary, commission, participation in profits or otherwise) as shall be approved by resolution of the directors.
101 The Company may pay to a director who at the request of the Company holds any office (including a directorship) in, or renders services to, any company in which the Company may be interested, such remuneration (whether by way of salary, commission, participation in profits or otherwise) in respect of such office or services as shall be approved by resolution of the directors.
102 The office of director shall be vacated if the director:
(a) is removed from office by an ordinary resolution of members; or
(b) is removed from office by an ordinary resolution of the directors of the Company; or
(c) becomes disqualified to act as a director under Section 111 of the Act.
(a)
RETIREMENT OF DIRECTORS BY ROTATION
103 Subject to the provisions of these Articles, one-third of the directors subject to retirement by rotation or, if their number is not three or a multiple of three, then the number nearest to but not exceeding one-third shall retire from office at each annual general meeting; but if their number is two one of them shall retire and if their number is one he shall retire.
104 Subject to the provisions of the Act and these Articles, the directors to retire at each annual general meeting shall include any director who wishes to retire or who is due to retire at the meeting and is unwilling or ineligible to be reappointed and any further directors so to retire shall be those who have been longest in office since their appointment or last reappointment. As between directors who were appointed or last reappointed on the same day the directors to retire shall, in the absence of agreement between them, be selected by lot.
105 If, at any meeting at which a director retires by rotation, the Company does not fill the vacancy, the retiring director, if willing to act, shall be deemed to be reappointed, unless at the meeting it is resolved not to fill the vacancy or a resolution for the reappointment of the director is put to the meeting and lost.
106 No person other than a director retiring at the meeting shall be appointed a director at any general meeting unless:-
(a) he is recommended by the directors for appointment; or
(b) not less than fourteen and not more than thirty-five clear days before the date appointed for the meeting, notice executed by a member qualified to vote at the meeting of the intention to propose that person for appointment or reappointment stating the particulars which would be required to be entered in the Company's register of directors if he were so appointed or reappointed, together with notice executed by that person indicating his willingness to be appointed or reappointed, have been deposited at the office or, where the notices are contained in electronic communications, have been duly received
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at the address specified by the Company for the purpose of receiving such communications.
107 Not less than seven nor more than twenty-eight clear days before the date appointed for holding a general meeting notice shall be given to all who are entitled to receive notice of the meeting of any person (other than a director retiring by rotation at the meeting) who is recommended by the directors for appointment or reappointment as a director at the meeting or in respect of whom notice has been duly given to the Company of the intention to propose him at the meeting for appointment or reappointment as a director. The notice will give the particulars of that person which would, if he were so appointed or reappointed, be required to be included in the Company's register of directors.
108 A person willing to act may be appointed a director, either to fill a casual vacancy or as an additional director, by the Company by ordinary resolution (subject to the provisions of Articles 106 and 107) or by the directors, provided that the total number of directors shall not exceed the maximum number fixed by or in accordance with these Articles. A director so appointed by the directors shall retire at the next annual general meting, and he shall not be taken into account in determining the directors to retire by rotation at the meeting.
109 A director who retires at a general meeting shall be eligible for reappointment. If he is not reappointed or deemed to be reappointed, he shall hold office as a director until the meeting appoints someone in his place or, if it does not do so, until the end of the meeting.
110 The office of a director shall be vacated if:-
(a) a bankruptcy order is made against him or he makes a voluntary arrangement with his creditors (within the meaning of the UK Insolvency Act 1986);
(b) he is, or may be, suffering from mental disorder and either:-
(i) he is admitted to hospital in pursuance of an application for admission for treatment under the UK Mental Health Act 1983 or such equivalent legislation as may from time to time be in force in the relevant jurisdiction; or
(ii) an order is made by a court of competent jurisdiction (whether in the United Kingdom or elsewhere) on the ground (however formulated) of mental disorder for his detention or for the appointment of a receiver or other person to exercise powers with respect to his property or affairs;
(c) he is prohibited by law from being a director;
(d) his resignation is requested by all of the other directors by notice to the Company;
(e) he is absent from meetings of the directors for six successive months without the permission of the directors and his alternate director (if any) has not during
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that period attended in his stead and the directors resolve that his office be vacated;
(f) not being a director holding an executive office, he resigns his office by notice to the Company;
(g) being a director holding an executive office, he ceases for any reason to hold such office; or
(h) he ceases to be a director by virtue of the Act or is removed from office pursuant to these Articles.
111 In accordance with and subject to the provisions of the Act, the Company may by ordinary resolution remove any director before the expiry of his period of office (without prejudice to any claim for breach of contact between him and the Company) and, by ordinary resolution, appoint another person in place of a director so removed from office and any person so appointed shall be treated for the purpose of determining the time at which he or any other director is to retire by rotation as if he had become a director on the day on which the director in whose place he is appointed was last elected a director. In default of such appointment the vacancy arising upon the removal of a director from office may be filled as a causal vacancy.
112 A director shall vacate his office at the conclusion of the annual general meeting commencing next after he attains the age of 70 but acts done by a person as a director are valid notwithstanding that it is afterwards discovered that his appointment had terminated under this Article provided that if any director is re-elected as a director at an annual general meeting after he attains the age of 70 he may, subject to the Act and the other provisions of the Articles continue to act as a director until the conclusion of the next following annual general meeting.
113 A director shall not be required to hold any shares of the Company by way of qualification.
OFFICERS
114 The directors of the Company may, by resolution of directors, appoint officers of the Company at such times as shall be considered necessary. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modifications in such duties as may be prescribed by the directors thereafter, but in the absence of any specific allocation of duties it shall be the responsibility of the President to manage the day to day affairs of the Company, the Vice Presidents to act in order of seniority in the absence of the President, but otherwise to perform such duties as may be delegated to them by the President, the Secretary to maintain the registers, minute books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the Treasurer to be responsible for the financial affairs of the Company.
115 Any person may hold more than one office and no officer need be a director or member of the Company. The officers shall remain in office until removed from office by the directors, whether or not a successor is appointed.
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116 Any officer who is a body corporate may appoint any person its duly authorised representative for the purpose of representing it and of transacting any of the business of the officers.
POWERS OF DIRECTORS
117 The business of the Company shall be managed by the directors who may pay all expenses incurred preliminary to and in connection with the formation and registration of the Company, and may exercise all such powers of the Company necessary for managing and for directing and supervising, the business and affairs of the Company as are not by the Act or by these Articles required to be exercised by the members subject to any delegation of such powers as may be authorised by these Articles and permitted by the Act and to such requirements as may be prescribed by resolution of the members, but no requirement made by resolution of the members shall prevail if it be inconsistent with these Articles nor shall such requirement invalidate any prior act of the directors which would have been valid if such requirement had not been made.
118 The board of directors may entrust to and confer upon any director or officer any of the powers exercisable by it upon such terms and conditions and with such restrictions as it thinks fit, and either collaterally with, or to the exclusion of, its own powers, and may from time to time revoke, withdraw, alter or vary all or any of such powers. Subject to the provisions of Section 110 of the Act, the directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit. Any committees so formed shall in the exercise of powers so delegated conform to any regulations that may be imposed on it by the directors or the provisions of the Act.
119 The directors may from time to time by power of attorney appoint any company, firm or person or body of persons to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles) and for such period and subject to such conditions as the directors think fit.
120 Any director who is a body corporate may appoint any person its duly authorised representative for the purpose of representing it at meetings of the directors and of transacting any of the business of the directors.
121 All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for monies paid to the Company, shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be, in such manner as the directors shall from time to time by resolution determine.
122 The directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertakings, property and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.
123 The directors may delegate any of their powers:-
(a) to any directors; and
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(b) to any committee consisting of one or more directors
Any such delegation may be made subject to any conditions which the directors may impose, and either collaterally with or to the exclusion of their own powers, and may be revoked or altered. Subject to any such conditions, any such delegation shall be deemed to include authority to sub-delegate to any one or more director or to any employee or agent of the Company. Subject to any such conditions, the proceedings of a committee consisting of two or more directors shall be governed by the provisions of these articles regulating the proceedings of the director so far as they are capable of applying and so far as the same are not superseded by an regulations which may from time to time be imposed by the directors. Any such regulations may provide for or authorise the co-option to the committee or sub-committee of persons other than directors any may provide for members who are not directors to have voting rights as members of the committee or sub-committee.
PROCEEDINGS OF DIRECTORS
124 The meetings of the board of directors and any committee thereof shall be held at such place or places as the directors shall decide.
125 The directors may elect a chairman (the "Chairman of the Board of Directors") of their meeting and determine the period for which he is to hold office. If no such Chairman of the Board of Directors is elected, or if at any meeting the Chairman of the Board of Directors is not present at the time appointed for holding the meeting, the directors present may choose one of their number to be Chairman of the Board of Directors for the meeting. If the directors are unable to choose a Chairman of the Board of Directors, for any reason, then the oldest director present at the meeting shall preside as the Chairman of the Board of Directors.
126 The directors may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality in votes the Chairman shall have a second or casting vote. Subject to article 114 below, a director may at any time summon a meeting of the directors. If the Company shall have only one director, the provisions hereinafter contained for meetings of the directors shall not apply but such sole director shall have full power to represent and act for the Company in all matters and in lieu of minutes of a meeting shall record in writing and sign a note of memorandum of all matters requiring a resolution of the directors. Such note or memorandum shall constitute sufficient evidence of such resolution for all purposes.
127 A director shall be given not less than three (3) days notice of a meeting of the directors.
128 Notwithstanding article 127, a meeting of directors held in contravention of article 127 is valid if a majority of the directors, entitled to vote at the meeting, have waived the notice of the meeting; and, for this purpose, the presence of a director at the meeting shall be deemed to constitute waiver on his part.
129 The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice shall not invalidate the meeting.
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130 The quorum for a meeting of the directors shall be at least one-third of the total number of directors with a minimum of two (2), or in the case of only one director a minimum of one (1).
131 If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall be dissolved.
132 Any one or more members of the board of directors or any committee thereof may participate in a meeting of such board of directors or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participating by such means shall constitute presence in person at a meeting.
133 A resolution approved by a majority of the directors for the time being entitled to receive notice of a meeting of the directors or of a committee of the directors and taking the form of one or more documents in writing or by telefax or other written or electronic communication shall be as valid and effectual as if it had been passed at a meeting of the directors or of such committee duly convened and held, without the need for any notice.
CONFLICT OF INTEREST
134 Notwithstanding his office, a director may, subject to the relevant provisions of the UK Companies Act 1985 and provided that he has disclosed to the board of directors the nature and extent of any material interest of his:-
(a) be a party to, or otherwise interested in, any contract, transaction or arrangement with the Company or with a body corporate in which the Company is interested or any transaction or arrangement in which the Company or any such body corporate is otherwise interested;
(b) be a director or other officer and/or be employed (and be remunerated) by or be otherwise interested in any such body corporate; and
(c) act (and be remunerated for acting) by himself or his firm in a professional capacity for the Company (otherwise than as auditor);
A director shall not, by reason of his office, be accountable to the Company for any benefit which he (or his firm) derives from any such contract, transaction, action 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 by reason of his office.
135 For the purposes of Article 134-
(a) a general notice given to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which specified person or class or persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified;
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(b) an interest of a person who is connected (within the meaning of section 346 of the UK Companies Act 1985) with a director shall be treated as an interest of the director; and
(c) an interest of which a direct has no knowledge and or which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.
INDEMNITY
136 Subject to the provisions of the Act, the Company may indemnify against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who:
(a) is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director of the Company; or
(b) is or was, at the request of the Company, serving as a director of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise.
SEAL
137 The directors shall provide for the safe custody of the common seal (if any) of the Company. The common seal when affixed to any instrument except as provided in article 2, shall be witnessed by a director or officer of the Company or any other person so authorised from time to time by the directors. The directors may provide for a facsimile of the common seal and approve the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the seal has been affixed to such instrument and the same had been signed as hereinbefore described.
DISTRIBUTIONS
138 Subject to the provisions of the Act, the directors of a Company may, by resolution, authorise a distribution by the Company at a time, and of an amount, and to any members they think fit if they are satisfied, on reasonable grounds, that the Company will, immediately after the distribution, satisfy the solvency test as stipulated in Section 56 of the Act.
139 Subject to the rights of the holders of shares entitled to special rights as to distributions, all distributions shall be declared and paid according to the par value of the shares in issue, excluding those shares which are held by the Company as Treasury Shares at the date of declaration of the distribution.
140 The directors may, before recommending any distribution, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at their discretion, either be employed in the business of the Company or be invested in such investments as the directors may from time to time think fit.
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141 If several persons are registered as joint holders of any share, any of them may give effectual receipt for any distribution or other monies payable on or in respect of the share.
142 Notice of any distribution that may have been declared shall be given to each member in manner hereinafter mentioned and all distributions unclaimed for three years after having been declared may be forfeited by the directors for the benefit of the Company.
143 No distribution shall bear interest against the Company.
UNTRACED SHAREHOLDERS
144 If on two consecutive occasions notices have been sent through the post to a member at his registered address or his address for the giving of notices but have been returned undelivered, the member shall not subsequently be entitled to receive notices from the Company until he has communicated with the Company and supplied, in writing to the register office, a new registered address for the giving of notices.
145 The Company may sell at the best price reasonably obtainable shares in the Company on behalf of the holder of, or person entitled by transmission to, the shares by instructing a member of the London Stock Exchange to sell them if:
(a) the shares have been in issue through the qualifying period and at least three cash dividends have become payable on the shares during the qualifying period;
(b) no cash dividend payable on the shares has either been claimed by presentation to the paying bank of the relevant cheque or warrant or been satisfied by the transfer of funds to a bank account designated by the holder of, or person entitled by transmission to, the shares during the relevant period;
(c) so far as the Secretary is aware, the Company has not during the relevant period received a communication from the holder of, or person entitled by transmission to, the shares;
(d) the Company has caused two advertisements to be published, one in a daily newspaper with a national circulation and the other in a newspaper circulating in the area of the last known address of the holder of, or person entitled by transmission to, the shares shown in the Register or in the area of the last known address at which service of notices may be effected in the manner authorised by these Articles, giving notice of its intention to sell the shares and a period of three months has elapsed from the date of publication of the advertisements or of the later of the two advertisements to be published if they are published on different dates; and
(e) the Company has given notice to the London Stock Exchange of its intention to make the sale.
146 For the purpose of article 145:
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(a) "the qualifying period" means the period of 12 years immediately preceding the date of publication of the advertisements referred to in article 145(d) or the first of the two advertisements to be published if they are published on different dates; and
(b) "the relevant period" means the period beginning at the commencement of the qualifying period and ending on the date when all the requirements of article 145 have been satisfied.
147 If, during the relevant period, further shares are issued in right of those held at the beginning of the relevant period and all the requirements of article 145 have been satisfied in respect of the further shares, the Company may also sell the further shares.
148 To give effect to a sale of shares under articles 145 and 147, the Board may authorise a person (so far as consistent with the facilities and requirements of the relevant system) to convert a share in certificated form which is to be sold into a share in uncertificated form, or vice versa, or, in relation to certificated shares, to transfer the shares. An instrument of transfer executed by that person shall be as effective as if it had been executed by the holder of the shares.
149 The purchaser shall not be bound to see to the application of the purchase consideration and his title to the shares shall not be affected by an irregularity or invalidity in the proceedings relating to the sale.
150 The net proceeds of sale shall belong to the Company and, on their receipt, the Company shall become indebted to the former holder of the shares for an amount equal to the net proceeds. A trust shall not be created in respect of the debt and interest shall not be payable in respect of it. The Company shall not be required to account for sums earned from the proceeds but shall be entitled to use them for the purposes of the Company or otherwise as it thinks fit.
151 The Company may cease to send a cheque or warrant through the post or may stop the transfer of a sum by a bank or other funds transfer system, as the case may be, for a dividend payable on shares in the Company which is normally paid in that manner on those shares if, in respect of at least two consecutive dividends payable on those shares, the cheques or warrants have been returned undelivered or remain uncashed or the transfer has failed. Subject to the provisions of these Articles, the Company shall recommence sending cheques or warrants or transferring funds in respect of dividends payable on those shares, if the holder or person entitled by transmission claims the arrears of dividend, in which case the Company shall resume payment of dividend (and arrears) as notified by the claimant or, in the absence of notification, in the same manner in which payment was effected prior to the suspension of the payment.
RECORD DATES
152 Despite any other provision of these Articles, the Company or the Board may fix a date as the record date for a dividend, distribution, allotment or issue provided that it is not later than the date on which the dividend, distribution, allotment or issue is paid or made.
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COMPANY RECORDS
153 The Company shall keep records that:
(a) are sufficient to show and explain the Company's transactions; and
(b) will, at any time, enable the financial position of the Company to be determined with reasonable accuracy.
154 The Company shall keep:
(a) minutes of all meetings of:
(i) directors,
(ii) members,
(iii) committees of directors, and
(iv) committees of members;
(b) copies of all resolutions proposed (whether or not the consent of the same was obtained) by:
(i) directors,
(ii) members,
(iii) committees of directors, and
(iv) committees of members;
(c) where it has a common seal, an imprint of the seal at the registered office of the Company.
155 The Company shall keep the following records at the office of its registered agent or at such other place or places, within or outside the British Virgin Islands, as the directors may determine:
(a) minutes of meetings and resolutions of members and of classes of members maintained in accordance with article 154; and
(b) minutes of meetings and resolutions of directors and committees of directors maintained in accordance with article 154.
156 The Company shall keep the following documents at the office of its registered agent:
(a) the Memorandum and Articles of the Company;
(b) the register of members maintained in accordance with article 159 or a copy of the register of members;
(c) the register of directors maintained in accordance with article 158 or a copy of the register of directors; and
(d) copies of all notices and other documents filed by the Company in the previous ten years; and
(e) a copy of the register of charges kept by the Company pursuant to Section 162(1) of the Act.
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157 (a) Where the Company keeps a copy of the register of members or the register of directors at the office of its registered agent, it shall
(i) within 15 days of any change in the register, notify the registered agent, in writing, of the change; and
(ii) provide the registered agent with a written record of the physical address of the place or places at which the original register of members or the original register of directors is kept.
(b) Where the place at which the original register of members or the original register of directors is changed, the Company shall provide the registered agent with the physical address of the new location of the records within 14 days of the change of location.
158 The Company shall keep a register to be known as a register of directors containing the names and addresses of the persons who are directors of the Company, the date on which each person whose name is entered in the register was appointed as a director of the Company, the date on which each person named as a director ceased to be a director of the Company, and such other information as may be prescribed.
159 The Company shall maintain an accurate and complete register of members showing the full names and addresses of all persons holding registered shares in the Company, the number of each class and series of registered shares held by such person, the date on which the name of each member was entered in the register of members and where applicable, the date such person ceased to hold any registered shares in the Company.
160 The records, documents and registers required by articles 138 to 144 inclusive shall be open to the inspection of the directors at all times.
161 The directors shall from time to time determine whether and to what extent and at what times and places and under what conditions the records, documents and registers of the Company or any of them shall be open to the inspection of members not being directors, and no member (not being a director) shall have any right of inspecting any records, documents or registers of the Company except as conferred by the Act or authorised by resolution of the directors.
AUDIT
162 The Board shall be responsible for maintaining accounting records complying with the provisions of the Act.
163 The accounting records shall be kept at the registered office or (subject to the provisions of the Act) at another place the Board thinks fit and shall be open to inspection by officers of the Company at all times. The directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the books, records and minutes of the Company or any of them shall be open to the inspection of members not being directors, and no member (not being a director) shall have any right of inspecting any book, record, minute or document of the Company save that a member may, in person or by attorney and in furtherance of a proper purpose, pursuant to request in writing specifying the purpose, inspect during normal business hours the share register of the Company or the books, records, minutes and consents kept by the Company and
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to make copies of extracts therefrom. A proper purpose for the purposes of this article is a purpose reasonably related to the member's interest as a member. The Company may refuse a request by a member to inspect any books, records, minute or document where the directors do not deem it to be in the best interests of the Company or another of its members to comply with such a request.
164 The directors shall following the end of each financial period (being a period at their determination) arrange for the annual accounts of the Company to be examined by an auditor or auditors to be appointed by them at such remuneration as may from time to time be agreed.
165 The auditors shall be an independent public or chartered accountant with expertise commensurate with a company listed on AIM. The auditors may not be a member of the Company nor shall any director or officer be eligible during his continuance in office.
166 Every auditor of the Company shall have a right of access at all times to the books of accounts of the Company, and shall be entitled to require from the officers of the Company such information and explanations as he thinks necessary for the performance of his duties.
167 The report of the auditor shall be annexed to the accounts upon which he reports, and the auditor shall be entitled to receive notice of, and to attend, any meeting at which the Company's audited Profit and Loss Account and Balance Sheet is to be presented.
168 Subject to the provisions of the Act, the Company may send a summary financial statement to members instead of or in addition to copies of its full accounts and reports.
NOTICES
169 Any notice, information or written statement required to be given to members shall be served by mail (air-mail service if available) addressed to each member at the address shown in the share register.
CAPITALISATION OF PROFITS
170 The Board may:
(a) subject as provided in this article, resolve to capitalise undistributed profits which are not required for paying fixed or preferred dividends (whether or not the profits are available for distribution) or a sum standing to the credit of share premium account or capital redemption reserve or other reserve or fund;
(b) appropriate the sum resolved to be capitalised to the members who would have been entitled to it if it were distributed by way of dividend and in the same proportions; apply the sum on their behalf in paying up in full unissued shares or debentures of the Company of a nominal amount equal to the sum; and allot the shares or debentures credited as fully paid to those members, or as they direct, in those proportions. The share premium account, the capital redemption reserve and any profits, reserve or fund which are not
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available for distribution may, for the purposes of this article, be applied only in paying up unissued shares to be allotted to members credited as fully paid;
(c) in the case of shares or debentures which would become distributable in fractions, provide for the issue of fractional certificates, the rounding down of fractions, the payment of cash or other arrangements as it determines;
(d) authorise some person, on behalf of and so as to bind all the members concerned, to enter into an agreement with the Company providing for the allotment to them of the shares or debentures to which they are entitled on the capitalisation; and
(e) generally do anything required or desirable to give effect to the resolution.
FEES, REMUNERATION, EXPENSES, PENSIONS AND SUPERANNUATION FUNDS
171 Without prejudice to Article 174, the directors (other than directors holding executive office and alternate directors) shall be paid the fees for their services determined by the Board (or a committee of the Board). The aggregate of the fees (excluding amounts payable under other provisions of these Articles) shall not exceed £100,000 per annum (and this figure shall be subject to upward-only adjustment in line with the percentage increase in the retail prices index published by Department of Employment of Great Britain (or by any government department upon which duties in connection with such index shall have devalued) after the date of the adoption of these Articles) or a higher amount decided by ordinary resolution. The fees shall be divided amongst the directors entitled to them in the proportions and the manner the Board determines or, in default of a determination, equally (except that, if a director holds office for less than the whole of the period to which the fees relate, his share shall be reduced in proportion to the part of the period for which he did not hold office).
172 A director who does not hold executive office and serves on a committee or devotes special attention to the business of the Company, or otherwise performs services which in the opinion of the Board are outside the scope of the ordinary duties of a director, may be paid extra remuneration by way of salary, participation in profits or otherwise as the Board determines.
173 The directors may be paid all expenses properly incurred by them in connection with their services.
174 A director appointed to hold an employment or executive office in accordance with the provisions of these Articles shall receive the remuneration (by way of salary, commission, participation in profits or otherwise) which the Board or a committee of the Board may decide, either in addition to, or in lieu of, his remuneration as a director.
175 The directors may establish and maintain or procure the establishment and maintenance of any non-contributory or contributory pension or superannuation funds for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments, to any persons who are or were at any time in the employment or service of the Company or any company which is a subsidiary of the
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Company or is allied to or associated with the Company or with any such subsidiary, or who are or were at any time directors or officers of the Company or of any such other company as aforesaid or who hold or held any salaried employment or office in the Company or such other company, or any persons in whose welfare the Company or any such other company as aforesaid is or has been at any time interested, and to the wives, widows, families and dependents of any such person, and may make payments for or towards the insurance of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in conjunction with any such other company as aforesaid. Subject always to the proposal being approved by resolution of members, a director holding any such employment, or office shall be entitled to participate in and retain for his own benefit any such donation, gratuity, pension allowance or emolument.
WINDING UP
176 The Company may be voluntarily liquidated under Part XII of the Act if it has no liabilities and it is able to pay its debts as they become due. If the Company shall be wound up, the liquidator may, in accordance with a resolution of members, divide amongst the members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for such purpose set such value as he deems fair upon any such property to be divided as aforesaid and may determine how such division shall be carried out as between the members or different classes of members. The liquidator may vest the whole or any part of such assets in trustees upon such trust for the benefit of the contributors as the liquidator shall think fit, but so that no member shall be compelled to accept any shares or other securities whereon there is any liability.
CONTINUATION
177 The Company may by resolution of members or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands in the manner provided under those laws.
AMENDMENT TO ARTICLES
178 The Company may alter or modify the conditions contained in these Articles as originally drafted or as amended from time to time by a resolution of the members.
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Subscriber OFFSHORE INCORPORATIONS LIMITED
(Sd.) E.T. Powell Authorised Signatory
In the presence of Witness
(Sd.) Fandy Tsoi 9th Floor, Ruttonjee House 11 Duddell Street, Central Hong Kong Occupation: Operations Manager