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1
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In
these Articles, Table A in the Schedule to the Companies Law (2004
Revision) does not apply and, unless there is something in the subject
or
context inconsistent therewith,
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| (a) |
a
Director who is, or at any time during the past three years was,
employed
by the Company or by any parent or subsidiary of the
Company;
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| (b) |
a
Director who accepted or who has a Family Member who accepted any
payments
from the Company or any parent or subsidiary of the Company in excess
of
US$60,000 during the current fiscal year or any of the past three
fiscal
years, other than compensation for board or board committee service,
payments arising solely from investments in the Company’s securities,
compensation paid to a Family Member who is a non-executive employee
of
the Company or a parent or subsidiary of the Company, benefits under
a
tax-qualified retirement plan, or loans permitted under 13(k) of
the U.S.
Securities Act of 1933;
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| (c) |
a
Director who is a Family Member of an individual who is, or at any
time
during the past three years was employed by the Company or by any
parent
or subsidiary of the Company as an executive
officer;
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| (d) |
a
Director who is, or who has a Family Member who is, a partner in,
or a
controlling shareholder of an executive officer of, any organization
to
which the Company made, or from which the Company received, payments
for
property or services in the current or any of the past three fiscal
years
that exceed 5% of the recipient’s consolidated gross revenues for that
year, or US$200,000, whichever is more other than the
following:
|
| i. |
payments
arising solely from investments in the Company's securities;
or
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| ii. |
payments
under non-discretionary charitable matching
programs;
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| (e) |
a
Director who is, or has a Family Member who is, employed as an executive
officer of another entity where at any time during the past three
years
any of the executive officers of the listed Company serve on the
compensation committee of such other entity;
or
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| (f) |
a
Director who is, or has a Family Member who is, a current partner
of the
Company’s outside auditor, or was a partner or employee of the Company's
outside auditor who worked on the Company’s audit at any time, during the
past three years.
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(a)
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any
Director or executive officer of the
Company;
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(b)
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any
nominee for election as a Director;
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(c)
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any
holder who is known to the Company to own of record or beneficially
more
than 5% of any class of the Company’s voting securities;
and
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(d)
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any
member of the immediate family of the foregoing
persons.
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2
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The
business of the Company may be commenced as soon after incorporation
as
the Directors shall see fit.
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3
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The
Directors may pay, out of the capital or any other monies of the
Company,
all expenses incurred in or about the formation and establishment
of the
Company including the expenses of
registration.
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4
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The
authorised share capital of the Company is US$2,000 divided into
2,000,000,000 ordinary shares of a nominal or par value of US$0.000001
each.
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| 5 |
Subject
to the relevant provisions, if any, in the Memorandum and these Articles
and to any direction that may be given by the Company in general
meeting
and without prejudice to any special rights previously conferred
on the
holders of existing Shares, the Directors may allot, issue, grant
options
over or otherwise dispose of Shares (including fractions of a Share)
with
or without preferred, deferred or other special rights or restrictions,
in
one or more series, whether with regard to dividend rights, dividend
rates, conversion rights, voting rights, rights and terms of redemption
and liquidation preferences or otherwise and to such persons, at
such
times and on such other terms as they think proper. The Company shall
not
issue Shares in bearer form.
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| 6 |
The
Company shall maintain a Register of Members and every person whose
name
is entered as a Member in the Register of Members shall be entitled
without payment to receive within two months after allotment or lodgement
of transfer (or within such other period as the conditions of issue
shall
provide) one certificate for all his Shares or several certificates
each
for one or more of his Shares upon payment of fifty cents (US$0.50)
for
every certificate after the first or such less sum as the Directors
shall
from time to time determine provided that in respect of a Share or
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 the several joint holders shall be sufficient delivery to all
such
holders.
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| 7 |
The
Board shall cause to be kept at such place within or outside the
Cayman
Islands as they deem fit a principal register of the Members and
there
shall be entered therein the particulars of the Members and the Shares
issued to each of them and other particulars required under the Companies
Law.
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| 8 |
If
the Board considers it necessary or appropriate, the Company may
establish
and maintain a branch register or registers of Members at such location
or
locations within or outside the Cayman Islands as the Board thinks
fit.
The principal register and the branch register(s) shall together
be
treated as the Register of Members for the purposes of these
Articles.
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| 9 |
The
Board may, in its absolute discretion, at any time transfer any Share
upon
the principal register to any branch register or any Share on any
branch
register to the principal register or any other branch
register.
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| 10 |
The
Company shall as soon as practicable and on a regular basis record
in the
principal register all transfers of Shares effected on any branch
register
and shall at all times maintain the principal register in such manner
to
show at all times the Members for the time being and the Shares
respectively held by them, in all respects in accordance with the
Companies Law.
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| 11 |
The
Register of Members may be closed at such times and for such periods
as
the Board may from time to time determine, either generally or in
respect
of any class of Shares, provided that the Register of Members shall
not be
closed for more than 30 days in any year (or such longer period as
the
members may by ordinary resolution determine provided that such period
shall not be extended beyond 60 days in any
year).
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| 12 |
Every
certificate for Shares or debentures or representing any other form
of
security of the Company may be issued under the Seal, which shall
only be
affixed with the authority of the Board or may be executed under
hand by
any two directors or as may otherwise be directed by the
Board.
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| 13 |
Every
Share certificate shall specify the number of Shares in respect of
which
it is issued and the amount paid thereon or the fact that they are
fully
paid, as the case may be, and may otherwise be in such form as the
Board
may from time to time prescribe.
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| 14 |
The
Company shall not be bound to register more than four persons as
joint
holders of any Share. If any Shares shall stand in the names of two
or
more persons, the person first named in the Register of Members shall
be
deemed the sole holder thereof as regards service of notices and,
subject
to the provisions of these Articles, all or any other matters connected
with the Company, except the transfer of the
Share.
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| 15 |
If
a Share certificate is defaced, lost or destroyed, it may be replaced
on
payment of such reasonable fee, if any, as the Board may from time
to time
prescribe and on such terms and conditions, if any, as to publication
of
notices, evidence and indemnity, as the Board thinks fit and where
it is
defaced or worn out, after delivery up of the old certificate to
the
Company for cancellation.
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| 16 |
The
instrument of transfer of any Share shall be in writing in the usual
or
common form or any other form approved by the Board, and shall be
executed
by or on behalf of the transferor and the transferor shall be deemed
to
remain the holder of a Share until the name of the transferee is
entered
in the Register of Members in respect
thereof.
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| 17 |
The
Directors may in their absolute discretion decline to register any
transfer of Shares without assigning any reason therefor. If the
Directors
refuse to register a transfer they shall notify the transferee within
two
months of such refusal.
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| 18 |
The
registration of transfers may be suspended at such time and for such
periods as the Directors may from time to time determine, provided
always
that such registration shall not be suspended for more than forty
five
days in any year.
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19
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(a) |
Subject
to the provisions of the Companies Law and the Memorandum, Shares
may be
issued or converted into Shares on the terms that they are, or at
the
option of the Company or the holder are, to be redeemed on such terms
and
in such manner as the Company, before the issue or conversion of
the
Shares, may by Special Resolution determine.
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| (b) |
Subject
to the provisions of the Companies Law and the Memorandum, the Company
may
purchase its own Shares (including fractions of a Share), including
any
redeemable Shares, provided that the manner of purchase has first
been
authorised by the Company in a general meeting and may make payment
therefor in any manner authorised by the Companies Law, including
out of
capital. Where the Company purchases for redemption a redeemable
share,
purchases not made through the market or by tender shall be limited
to a
maximum price as may from time to time be determined by the Directors,
either generally or with regard to specific purchases. If purchases
are by
tender, tenders shall comply with Applicable
Laws.
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| 20 |
If
at any time the Share capital of the Company 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 and except where these Articles
or
the Companies Law impose any stricter quorum, voting or procedural
requirements in regard to the variation of rights attached to a
specific
class, be varied with the consent in writing of the holders of
75% of the
issued Shares of that class, or with the sanction of a Special
Resolution
passed at a general meeting of the holders of the Shares of that
class.
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| 21 |
The
provisions of these Articles relating to general meetings shall
apply to
every such general meeting of the holders of one class of Shares
except
that the necessary quorum shall be one person holding or representing
by
proxy at least one third of the issued Shares of the class and
that any
holder of Shares of the class present in person or by proxy may
demand a
poll.
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| 22 |
For
purposes of this provision any particular issue of Shares not carrying
the
same rights (whether as to rate of dividend, redemption or otherwise)
as
any other Shares of the time being in issue, shall be deemed to
constitute
a separate class of Shares. The rights conferred upon the holders
of the
Shares of any class issued with preferred or other rights shall
not,
unless otherwise expressly provided by the terms of issue of the
Shares of
that class, be deemed to be varied by the creation or issue of
further
Shares ranking pari passu
therewith.
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| 23 |
The
Company may in so far as the Applicable Laws from time to time
permit pay
a commission to any person in consideration of his subscribing
or agreeing
to subscribe whether absolutely or conditionally for any Shares
of the
Company. Such commissions may be satisfied by the payment of cash
or the
lodgement of fully or partly paid up Shares or partly in one way
and
partly in the other. The Company may also on any issue of Shares
pay such
brokerage as may be lawful.
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| 24 |
In
the event that the Company shall propose at any
time:
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| (a) |
to
declare any dividend or distribution upon its Shares, whether in
cash,
property, Shares or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned
surplus;
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| (b) |
to
offer for subscription pro rata to the holders of any class or series
of
its Shares any additional shares of Shares of any class or series
or other
rights;
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| (c) |
to
effect any reclassification or recapitalisation of its Shares outstanding
involving a change in the Shares;
or
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| (d) |
to
merge or consolidate with or into any other corporation, or sell,
lease or
convey all or substantially all its property or business, or to liquidate,
dissolve or wind up:
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| (i) |
at
least 20 days' prior written notice shall be given to Members of
the date
on which a record shall be taken for such dividend, distribution
or
subscription rights (and specifying the date on which the holders
of
Shares shall be entitled thereto) or for determining rights to vote
in
respect of the matters referred to in (c) and (d) above;
and
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| (ii) |
in
the case of the matters referred to in (c) and (d) above, at least
20
days' prior written notice shall be given to Members of the date
when the
same shall take place (and specifying the date on which the holders
of
Shares shall be entitled to exchange their Shares for securities
or other
property deliverable upon the occurrence of such
event).
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| 25 |
The
Company shall not be bound by or compelled to recognise in any
way (even
when notified) any equitable, contingent, future, or partial interest
in
any Share, or (except only as is otherwise provided by these Articles
or
the Applicable Laws) any other rights in respect of any Share other
than
an absolute right to the entirety thereof in the registered
holder.
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| 26 |
The
Company shall have a first and paramount lien on all Shares (whether
fully
paid up or not) registered in the name of a Member (whether solely
or
jointly with others) for all debts, liabilities or engagements
to or with
the Company (whether presently payable or not) by such Member or
his
estate, either alone or jointly with any other person, whether
a Member or
not, but the Directors may at any time declare any Share to be
wholly or
in part exempt from the provisions of this Article. The registration
of a
transfer of any such Share shall operate as a waiver of the Company's
lien
thereon. The Company's lien on a Share shall also extend to any
amount
payable in respect of that
Share.
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| 27 |
The
Company may sell, in such manner as the Directors think fit, any
Shares on
which the Company has a lien, if a sum in respect of which the
lien exists
is presently payable, and is not paid within fourteen days after
notice
has been given to the holder of the Shares or to the person entitled
to it
in consequence of the death or bankruptcy of the holder, demanding
payment
and stating that if the notice is not complied with the Shares
may be
sold.
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| 28 |
To
give effect to any such sale, the Directors may authorise any person
to
execute an instrument of transfer of the Shares sold to, or in
accordance
with the directions of, the purchaser. The purchaser or his nominee
shall
be registered as the holder of the Shares comprised in any such
transfer,
and he shall not be bound to see to the application of the purchase
money,
nor shall his title to the Shares be affected by any irregularity
or
invalidity in the sale or the exercise of the Company's power of
sale
under these Articles.
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| 29 |
The
net proceeds of such sale after payment of such costs, shall be
applied in
payment of such part of the amount in respect of which the lien
exists as
is presently payable and any residue, shall (subject to a like
lien for
sums not presently payable as existed upon the Shares before the
sale) be
paid to the person entitled to the Shares at the date of the
sale.
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30
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(a) |
The
Directors may from time to time make calls upon the Members in
respect of
any monies unpaid on their Shares (whether on account of the nominal
value
of the Shares or by way of premium or otherwise) and not by the
conditions
of allotment thereof made payable at fixed terms, provided that
no call
shall be payable at less than one month from the date fixed for
the
payment of the last preceding call, and each Member shall (subject
to
receiving at least fourteen days notice specifying the time or
times of
payment) pay to the Company at the time or times so specified the
amount
called on the Shares. A call may be revoked or postponed as the
Directors
may determine. A call may be made payable by
instalments.
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| (b) |
A
call shall be deemed to have been made at the time when the resolution
of
the Directors authorising such call was passed.
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(c)
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The
joint holders of a Share shall be jointly and severally liable
to pay all
calls in respect thereof.
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31
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If
a sum called in respect of a Share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is
due shall
pay interest on the sum from the day appointed for payment thereof
to the
time of actual payment at such rate not exceeding 10% per annum
as the
Directors may determine, but the Directors shall be at liberty
to waive
payment of such interest either wholly or in
part.
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| 32 |
Any
sum which by the terms of issue of a Share becomes payable on allotment
or
at any fixed date, whether on account of the nominal value of the
Share or
by way of premium or otherwise, shall for the purposes of these
Articles
be deemed to be a call duly made, notified and payable on the date
on
which by the terms of issue the same becomes payable, and in the
case of
non payment all the relevant provisions of these Articles as to
payment of
interest forfeiture or otherwise shall apply as if such sum had
become
payable by virtue of a call duly made and
notified.
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| 33 |
The
Directors may, on the issue of Shares, differentiate between the
holders
as to the amount of calls or interest to be paid and the times
of
payment.
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34
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(a) |
The
Directors may, if they think fit, receive from any Member willing
to
advance the same, all or any part of the monies uncalled and unpaid
upon
any Shares held by him, and upon all or any of the monies so advanced
may
(until the same would but for such advances, become payable) pay
interest
at such rate not exceeding (unless the Company in general meeting
shall
otherwise direct) 7% per annum, as may be agreed upon between the
Directors and the Member paying such sum in
advance.
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(b)
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No
such sum paid in advance of calls shall entitle the Member paying
such sum
to any portion of a dividend declared in respect of any period prior
to
the date upon which such sum would, but for such payment, become
presently
payable.
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35
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(a) |
If
a Member fails to pay any call or instalment of a call or to make
any
payment required by the terms of issue on the day appointed for
payment
thereof, the Directors may, at any time thereafter during such
time as any
part of the call, instalment or payment remains unpaid, give notice
requiring payment of any part of the call, instalment or payment
that is
unpaid, together with any interest which may have accrued and all
expenses
that have been incurred by the Company by reason of such non payment.
Such
notice shall name a day (not earlier than the expiration of fourteen
days
from the date of giving of the notice) on or before which the payment
required by the notice is to be made, and shall state that, in
the event
of non payment at or before the time appointed the Shares in respect
of
which such notice was given will be liable to be
forfeited.
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(b)
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If
the requirements of any such notice as aforesaid are not complied
with,
any Share in respect of which the notice has been given may at any
time
thereafter, before the payment required by the notice has been made,
be
forfeited by a resolution of the Directors to that effect. Such forfeiture
shall include all dividends declared in respect of the forfeited
Share and
not actually paid before the
forfeiture.
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(c)
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A
forfeited Share may be sold or otherwise disposed of on such terms
and in
such manner as the Directors think fit, and at any time before a
sale or
disposition, the forfeiture may be cancelled on such terms as the
Directors see fit.
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| 36 |
A
person whose Shares have been forfeited shall cease to be a Member
in
respect of the forfeited Shares, but shall, notwithstanding, remain
liable
to pay to the Company all monies which, at the date of forfeiture,
were
payable by him to the Company in respect of the Shares together
with
interest thereon, but his liability shall cease if and when the
Company
shall have received payment in full of all monies whenever payable
in
respect of the Shares.
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| 37 |
A
certificate in writing under the hand of one Director or the Secretary
of
the Company that a Share in the Company has been duly forfeited
on a date
stated in the declaration shall be conclusive evidence of the fact
therein
stated as against all persons claiming to be entitled to the Share.
The
Company may receive the consideration given for the Share on any
sale or
disposition thereof and may execute a transfer of the Share in
favour of
the person to whom the Share is sold or disposed of and he shall
thereupon
be registered as the holder of the Share and shall not be bound
to see to
the application of the purchase money, if any, nor shall his title
to the
Share be affected by any irregularity or invalidity in the proceedings
in
reference to the forfeiture, sale or disposal of the
Share.
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| 38 |
The
provisions of these Articles as to forfeiture shall apply in the
case of
non payment of any sum which, by the terms of issue of a Share,
becomes
payable at a fixed time, whether on account of the nominal value
of the
Share or by way of premium as if the same had been payable by virtue
of a
call duly made and notified.
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| 39 |
The
Company shall be entitled to charge a fee not exceeding one dollar
(US$1.00) on the registration of every grant of probate, letter
of
administration, certificate of death or marriage, power of attorney,
or
other instrument.
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| 40 |
In
case of the death of a Member, the survivor or survivors where
the
deceased was a joint holder, and the legal personal representatives
of the
deceased where he was a sole holder, shall be the only persons
recognised
by the Company as having any title to his interest in the Shares,
but
nothing herein contained shall release the estate of any such deceased
holder from any liability in respect of any Shares which had been
held by
him solely or jointly with other
persons.
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|
41
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(a) |
Any
person becoming entitled to a Share in consequence of the death
or
bankruptcy or liquidation or dissolution of a Member (or in any
other way
than by transfer) may, upon such evidence being produced as may
from time
to time be required by the Directors and subject as hereinafter
provided,
elect either to be registered himself as holder of the Share
or to make
such transfer of the Share to such other person nominated by
him as the
deceased or bankrupt person could have made and to have such
person
registered as the transferee thereof, but the Directors shall,
in either
case, have the same right to decline or suspend registration
as they would
have had in the case of a transfer of the Share by that Member
before his
death or bankruptcy as the case may
be.
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|
(b)
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If
the person so becoming entitled shall elect to be registered himself
as
holder he shall deliver or send to the Company a notice in writing
signed
by him stating that he so elects.
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| 42 |
A
person becoming entitled to a Share by reason of the death or bankruptcy
or liquidation or dissolution of the holder (or in any other case
than by
transfer) shall be entitled to the same dividends and other advantages
to
which he would be entitled if he were the registered holder of
the Share,
except that he shall not, before being registered as a Member in
respect
of the Share, be entitled in respect of it to exercise any right
conferred
by membership in relation to meetings of the Company, provided,
however,
that the Directors may at any time give notice requiring any such
person
to elect either to be registered himself or to transfer the Share,
and if
the notice is not complied with within ninety days, the Directors
may
thereafter withhold payment of all dividends, bonuses or other
monies
payable in respect of the Share until the requirements of the notice
have
been complied with.
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|
43
|
(a) |
The
Company may by Ordinary
Resolution:
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|
(i)
|
increase
the share capital by such sum as the resolution shall prescribe
and with
such rights, priorities and privileges annexed thereto, as the
Company in
general meeting may
determine;
|
| (ii) |
consolidate
and divide all or any of its share capital into Shares of larger
amount
than its existing Shares;
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| (iii) |
by
subdivision of its existing Shares or any of them divide the whole
or any
part of its share capital into Shares of smaller amount than is
fixed by
the Memorandum or into Shares without par
value;
|
| (iv) |
cancel
any Shares that at the date of the passing of the resolution have
not been
taken or agreed to be taken by any
person.
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|
(b)
|
All
new Shares created in accordance with the provisions of the preceding
Article shall be subject to the same provisions of the Articles with
reference to the payment of calls, liens, transfer, transmission,
forfeiture and otherwise as the Shares in the original share
capital.
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|
(c)
|
Subject
to the provisions of the Companies Law and the provisions of these
Articles as regards the matters to be dealt with by Ordinary Resolution,
the Company may by Special
Resolution:
|
| (i) |
change
its name;
|
| (ii) |
alter
or add to these Articles;
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| (iii) |
alter
or add to the Memorandum with respect to any objects, powers
or other
matters specified therein;
and
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| (iv) |
reduce
its share capital and any capital redemption reserve fund.
|
| 44 |
Subject
to the provisions of the Companies Law, the Company may by resolution
of
the Directors change the location of its Registered
Office.
|
| 45 |
For
the purpose of determining Members entitled to notice of or to
vote at any
meeting of Members or any adjournment thereof, or Members entitled
to
receive payment of any dividend, or in order to make a determination
of
Members for any other proper purpose, the Directors of the Company
may
provide that the Register of Members shall be closed for transfers
for a
stated period but not to exceed in any case forty days. If the
Register of
Members shall be so closed for the purpose of determining Members
entitled
to notice of or to vote at a meeting of Members, such register
shall be so
closed for at least ten days immediately preceding such meeting
and the
record date for such determination shall be the date of the closure
of the
Register of Members.
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| 46 |
In
lieu of or apart from closing the Register of Members, the Directors
may
fix in advance a date as the record date for any such determination
of
Members entitled to notice of or to vote at a meeting of the Members
and
for the purpose of determining the Members entitled to receive
payment of
any dividend the Directors may, at or within 90 days prior to the
date of
declaration of such dividend fix a subsequent date as the record
date for
such determination.
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| 47 |
If
the Register of Members is not so closed and no record date is
fixed for
the determination of Members entitled to notice of or to vote at
a meeting
of Members or Members entitled to receive payment of a dividend,
the date
on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted,
as the
case may be, shall be the record date for such determination of
Members.
When a determination of Members entitled to vote at any meeting
of Members
has been made as provided in this section, such determination shall
apply
to any adjournment thereof.
|
| 48 |
All
general meetings other than annual general meetings shall be called
extraordinary general
meetings.
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|
49
|
(a) |
The
Company shall, if required by the Applicable Laws, in each
year hold a
general meeting as its annual general meeting and shall specify
the
meeting as such in the notices calling it. The annual general
meeting
shall be held at such time and place as the Directors shall
appoint and if
no other time and place is prescribed by them, it shall be
held at the
Registered Office on the second Wednesday in December of
each year at ten
o'clock in the morning.
|
|
(b)
|
At
these meetings the report of the Directors (if any) shall be
presented.
|
| (c) |
The
Company may hold an annual general meeting but shall not (unless
required
by the Applicable Laws) be obliged to hold an annual general
meeting.
|
|
50
|
(a) |
The
Directors may call general meetings, and they shall on
a Members
requisition forthwith proceed to convene an extraordinary
general meeting
of the Company.
|
|
(b)
|
A
Members requisition is a requisition of Members of the Company
holding at
the date of deposit of the requisition not less than 10% in
par value of
the capital of the Company as at that date carries the right
of voting at
general meetings of the
Company.
|
| (c) |
The
requisition must state the objects of the meeting and must be signed
by
the requisitionists and deposited at the Registered Office, and
may
consist of several documents in like form each signed by one or
more
requisitionists.
|
| (d) |
If
the Directors do not within twenty one days from the date of the
deposit
of the requisition duly proceed to convene a general meeting to
be held
within a further twenty-one days, the requisitionists, or any of
them
representing more than one half of the total voting rights of all
of them,
may themselves convene a general meeting, but any meeting so convened
shall not be held after the expiration of three months after the
expiration of the second said twenty one
days.
|
| (e) |
A
general meeting convened as aforesaid by requisitionists shall
be convened
in the same manner as nearly as possible as that in which general
meetings
are to be convened by
Directors.
|
| 51 |
At
least twenty (but not more than sixty) days' notice shall be given
for any
general meeting. Every notice shall be inclusive of the day on
which it is
given or deemed to be given and of the day for which it is given
and shall
specify the place, the day and the hour of the meeting and the
general
nature of the business and shall be given in the manner hereinafter
mentioned or in such other manner if any as may be prescribed by
the
Company, provided that a general meeting of the Company shall,
whether or
not the notice specified in this regulation has been given and
whether or
not the provisions of Articles regarding general meetings have
been
complied with, be deemed to have been duly convened if it is so
agreed:
|
|
(a)
|
in
the case of an annual general meeting by all the Members (or their
proxies) entitled to attend and vote thereat;
and
|
|
(b)
|
in
the case of an extraordinary general meeting by a majority in number
of
the Members (or their proxies) having a right to attend and vote
at the
meeting, being a majority together holding not less than 95% in par
value
of the Shares giving that right.
|
| 52 |
The
accidental omission to give notice of a general meeting to, or
the non
receipt of notice of a meeting by any person entitled to receive
notice
shall not invalidate the proceedings of that
meeting.
|
| 53 |
For
all purposes the quorum for a general meeting shall be two Members
present
in person or by proxy or corporate representative provided always
that if
the Company has only one member of record the quorum shall be that
one
member present in person or by proxy; provided, however, that in
no case
shall such quorum be less than one-third of the outstanding voting
shares
in the capital of the Company. No business (except the appointment
of a
Chairman of the meeting) shall be transacted at any general meeting
unless
the requisite quorum shall be present at the commencement of the
business.
|
| 54 |
A
person may participate at a general meeting by conference telephone
or
other communications equipment by means of which all the persons
participating in the meeting can communicate with each other.
Participation by a person in a general meeting in this manner is
treated
as presence in person at that
meeting.
|
| 55 |
A
resolution (including a Special Resolution) in writing (in one
or more
counterparts) signed by all Members for the time being entitled
to receive
notice of and to attend and vote at general meetings (or, being
corporations, signed by their duly authorised representatives)
shall be as
valid and effective as if the resolution had been passed at a general
meeting of the Company duly convened and
held.
|
| 56 |
If
a quorum is not present within half an hour from the time appointed
for
the meeting or if during such a meeting a quorum ceases to be present,
the
meeting, if convened upon 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 or such
other
place as the Directors may determine, and if at the adjourned meeting
a
quorum is not present within half an hour from the time appointed
for the
meeting, the Members present shall be a
quorum.
|
| 57 |
The
person chairing the meeting, if any, of the Board of Directors
shall
preside as Chairman at every general meeting of the Company, or
if there
is no such Chairman, or if he shall not be present within fifteen
minutes
after the time appointed for the holding of the meeting, or is
unwilling
to act, the Directors present shall elect one of their number to
be
Chairman of the meeting.
|
| 58 |
If
no Director is willing to act as Chairman or if no Director is
present
within fifteen minutes after the time appointed for holding the
meeting,
the Members present shall choose one of their number to be Chairman
of the
meeting.
|
| 59 |
The
Chairman may, with the consent of a meeting at which a quorum is
present,
(and shall if so directed by the meeting), adjourn the meeting
from time
to time and from place to place, but no business shall be transacted
at
any adjourned meeting other than the business left unfinished at
the
meeting from which the adjournment took place. When a general meeting
is
adjourned for thirty days or more, notice of the adjourned meeting
shall
be given as in the case of an original meeting; otherwise it shall
not be
necessary to give any such
notice.
|
| 60 |
A
resolution put to the vote of the meeting shall be decided on a
show of
hands unless before or on the declaration of the result of, the
show of
hands, the Chairman demands a poll, or any other Member or Members
collectively present in person or by proxy and holding at least
10% in par
value of the Shares giving a right to attend and vote at the meeting
demand a poll.
|
| 61 |
Unless
a poll is duly demanded a declaration by the Chairman that a resolution
has been carried, or carried unanimously, or by a particular majority,
or
lost, or not carried by a particular majority, an entry to that
effect in
the minutes of the proceedings of the meeting shall be conclusive
evidence
of that fact without proof of the number or proportion of the votes
recorded in favour of or against such
resolution.
|
| 62 |
The
demand for a poll may be
withdrawn.
|
| 63 |
Unless
a poll is duly demanded, on the election of a Chairman or on a
question of
adjournment, a poll shall be taken as the Chairman directs and
the result
of the poll shall be deemed to be the resolution of the general
meeting at
which the poll was demanded.
|
| 64 |
In
the case of an equality of votes, whether on a show of hands or
on a poll,
the Chairman shall be entitled to a second or casting
vote.
|
| 65 |
A
poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other
question shall be taken at such time as the Chairman of the general
meeting directs, and any business other than that upon which a
poll has
been demanded or is contingent thereon may proceed pending the
taking of
the poll.
|
| 66 |
Subject
to any rights or restrictions attached to any Shares, on a show
of hands
every Member who (being an individual) is present in person or
by proxy
or, if a corporation or other non-natural person is present by
its duly
authorised representative or proxy, shall have one vote and on
a poll
every Member shall have one vote for every Share of which he is
the
holder.
|
| 67 |
In
the case of joint holders of record the vote of the senior who
tenders a
vote, whether in person or by proxy, shall be accepted to the exclusion
of
the votes of the other joint holders, and for this purpose seniority
shall
be determined by the order in which the names stand in the Register
of
Members.
|
| 68 |
A
Member of unsound mind, or in respect of whom an order has been
made by
any court, having jurisdiction in lunacy, may vote, whether on
a show of
hands or on a poll, by his committee, receiver, curator bonis,
or other
person in the nature of a committee, receiver or curator bonis
appointed
by that court, and any such committee, receiver, curator bonis
or other
persons may vote by proxy.
|
| 69 |
No
person shall be entitled to vote at any general meeting unless
he is
registered as a Member of the Company on the record date for such
meeting
nor unless all calls or other sums presently payable by him in
respect of
Shares have been paid.
|
| 70 |
No
objection shall be raised to the qualification of any voter except
at the
general meeting or adjourned general meeting at which the vote
objected to
is given or tendered and every vote not disallowed at such general
meeting
shall be valid for all purposes. Any such objection made in due
time shall
be referred to the Chairman of the general meeting whose decision
shall be
final and conclusive.
|
| 71 |
On
a poll or on a show of hands votes may be given either personally
or by
proxy.
|
| 72 |
The
instrument appointing a proxy shall be in writing and shall be
executed
under the hand of the appointor or of his attorney duly authorised
in
writing, or, if the appointor is a corporation under the hand of
an
officer or attorney duly authorised for that purpose. A proxy need
not be
a Member of the Company.
|
| 73 |
The
instrument appointing a proxy shall be deposited at the Registered
Office
or at such other place as is specified for that purpose in the
notice
convening the meeting, or in any instrument of proxy sent out by
the
Company:
|
| (a) |
not
less than 48 hours before the time for holding the meeting or adjourned
meeting at which the person named in the instrument proposes to
vote;
or
|
| (b) |
in
the case of a poll taken more than 48 hours after it is demanded,
be
deposited as aforesaid after the poll has been demanded and not
less than
24 hours before the time appointed for the taking of the poll;
and
|
| (c) |
where
the poll is not taken forthwith but is taken not more than 48 hours
after
it was demanded be delivered at the meeting at which the poll was
demanded
to the Chairman or to the secretary or to any
director;
|
| 74 |
The
instrument appointing a proxy may be in any usual or common form
and may
be expressed to be for a particular meeting or any adjournment
thereof or
generally until revoked. An instrument appointing a proxy shall
be deemed
to include the power to demand or join or concur in demanding a
poll.
|
| 75 |
Votes
given in accordance with the terms of an instrument of proxy shall
be
valid notwithstanding the previous death or insanity of the principal
or
revocation of the proxy or of the authority under which the proxy
was
executed, or the transfer of the Share in respect of which the
proxy is
given unless notice in writing of such death, insanity, revocation
or
transfer was received by the Company at the Registered Office before
the
commencement of the general meeting, or adjourned meeting at which
it is
sought to use the proxy.
|
| 76 |
Any
corporation or other non-natural person which is a Member may in
accordance with its constitutional documents, or in the absence
of such
provision by resolution of its Directors or other governing body,
authorise such person as it thinks fit to act as its representative
at any
meeting of the Company or of any class of Members, and the person
so
authorised shall be entitled to exercise the same powers on behalf
of the
corporation which he represents as the corporation could exercise
if it
were an individual Member. A person entitled to more than one vote
on a
poll need not use all his votes or cast all the votes he uses in
the same
way.
|
| 77 |
Shares
in the Company that are beneficially owned by the Company shall
not be
voted, directly or indirectly, at any meeting and shall not be
counted in
determining the total number of outstanding Shares at any given
time.
|
| 78 |
Any
corporation which is a Member of the Company may, by resolution of
its
directors or other governing body or by power of attorney, authorise
such
person as it thinks fit to act as its representative at any meeting
of the
Company or of members of any class of Shares of the Company and the
person
so authorised shall be entitled to exercise the same powers on behalf
of
the corporation which be represents as that corporation could exercise
if
it were an individual member of the Company and where a corporation
is so
represented, it shall be treated as being present at any meeting
in
person.
|
| 79 |
If
a clearing house (or its nominee) is a member of the Company it
may, by
resolution of its directors or other governing body or by power
of
attorney, authorise such person or persons as it thinks fit to
act as its
representative or representatives at any general meeting of the
Company or
at any general meeting of any class of members of the Company provided
that, if more than one person is so authorised, the authorisation
shall
specify the number and class of Shares in respect of which each
such
person is so authorised. A person so authorised pursuant to this
provision
shall be entitled to exercise the same powers on behalf of the
clearing
house (or its nominee) which he represents as that clearing house
(or its
nominee) could exercise if it were an individual member of the
Company
holding the number and class of Shares specified in such
authorisation.
|
|
80
|
(a) |
There
shall be a Board of Directors (the "Board")
consisting of not more than eleven (11) persons,
including at least three
(3) Independent Directors. The three (3) Independent
Directors shall be
nominated by the Nominations Committee and approved
by the vote of holders
of a majority of the
Shares.
|
| (b) |
or
as long as the ADSs are listed on Nasdaq, the Independent Directors
shall
meet at least twice per year and no other Directors shall be
present at
such meetings.
|
| 81 |
Subject
to Article 118(a) each Director shall hold office until the expiration
of
his term and until his successor shall have been elected and
qualified.
|
| 82 |
[Intentionally
deleted].
|
| 83 |
Subject
to Article 100(j), the remuneration to be paid to the Directors
shall be
such remuneration as the Directors shall determine. Such remuneration
shall be deemed to accrue from day to day. The Directors shall
also be
entitled to be paid their travelling, hotel and other expenses
properly
incurred by them in going to, attending and returning from meetings
of the
Directors, or any committee of the Directors, or general meetings
of the
Company, or otherwise in connection with the business of the Company,
or
to receive a fixed allowance in respect thereof as may be determined
by
the Directors from time to time, or a combination partly of one
such
method and partly the other.
|
| 84 |
Subject
to Article 100(j), the Directors may by resolution award special
remuneration to any Director of the Company undertaking any special
work
or services for, or undertaking any special mission on behalf of,
the
Company other than his ordinary routine work as a Director. Any
fees paid
to a Director who is also counsel or solicitor to the Company,
or
otherwise serves it in a professional capacity shall be in addition
to his
remuneration as a Director.
|
| 85 |
A
Director or alternate Director may hold any other office or place
of
profit under the Company (other than the office of Auditor) in
conjunction
with his office of Director for such period and on such terms as
to
remuneration and otherwise as the Directors may
determine.
|
| 86 |
A
Director or alternate Director may act by himself or his firm in
a
professional capacity for the Company and he or his firm shall
be entitled
to remuneration for professional services as if he were not a Director
or
alternate Director.
|
| 87 |
A
shareholding qualification for Directors may not be fixed by the
Company
in general meeting.
|
| 88 |
The
Company shall keep at its Registered Office a register of Directors
and
officers containing their names and addresses and occupations and
other
particulars required by the Companies Law and shall send to the
Registrar
of Companies of the Cayman Islands a copy of such register and
shall from
time to time notify to the Registrar of Companies of the Cayman
Islands
any change that takes place in relation to such Directors and officers
as
required by the Companies
Law.
|
| 89 |
A
Director who expects to be unable to attend Directors' meetings
because of
absence, illness or otherwise may appoint any person to be an alternate
Director to act in his stead and such appointee whilst he holds
office as
an alternate Director shall, in the event of absence therefrom
of his
appointor, be entitled to attend meetings of the Directors and
to vote
thereat and to do, in the place and stead of his appointor, any
other act
or thing which his appointor is permitted or required to do by
virtue of
his being a Director as if the alternate Director were the appointor,
other than appointment of an alternate to himself, and he shall
ipso facto
vacate office if and when his appointor ceases to be a Director
or removes
the appointee from office. Any appointment or removal under this
Article
shall be effected by notice in writing under the hand of the Director
making the same.
|
| 90 |
The
appointment of an alternate Director shall determine on the happening
of
any event which, were he a Director, would cause him to vacate
such office
or if his appointor ceases to be a
Director.
|
| 91 |
An
alternate Director shall be entitled to receive and waive (in lieu
of his
appointor) notices of meetings of the Directors and shall be entitled
to
attend and vote as a Director and be counted in the quorum at any
such
meeting at which the Director appointing him is not personally
present and
generally at such meeting to perform all the functions of his appointor
as
a Director and for the purposes of the proceedings at such meeting
the
provisions of these Articles shall apply as if he (instead of his
appointor) were a Director. If he shall be himself a Director or
shall
attend any such meeting as an alternate for more than one Director,
his
voting rights shall be cumulative and he need not use all his votes
or
cast all the votes to uses in the same way. To such extent as the
Board
may from time to time determine in relation to any committee of
the Board,
the foregoing provisions of this Article shall also apply mutatis
mutandis
to
any meeting of any such committee of which his appointor is a member.
An
alternate Director shall not, save as aforesaid, have power to
act as a
Director nor shall he be deemed to be a Director for the purposes
of these
Articles.
|
| 92 |
An
alternate Director shall be entitled to contract and be interested
in and
benefit from contracts, arrangements or transactions and to be
repaid
expenses and to be indemnified to the same extent mutatis
mutandis as
if he were a Director, but he shall not be entitled to receive
from the
Company in respect of his appointment as alternate Director any
remuneration except only such part (if any) of the remuneration
otherwise
payable to his appointor as such appointor may by notice in writing
to the
Company from time to time
direct.
|
| 93 |
In
addition to the foregoing provisions of this Article, a Director
may be
represented at any meeting of the Board (or of any committee of the
Board)
by a proxy appointed by him, is which event the presence or vote
of the
proxy shall for all purposes be deemed to be that of the Director.
A proxy
need not himself be a Director and the provisions of Articles 72
to 77
shall apply mutatis
mutandis to
the appointment of proxies by Directors save that an instrument appointing
a proxy shall not become invalid after the expiration of twelve months
from its date of execution but shall remain valid for such period
as the
instrument shall provide or, if no such provision is made in the
instrument, until revoked in writing and save also that a Director
may
appoint any number of proxies although only one such proxy may attend
in
his stead at meetings of the
Board).
|
| 94 |
The
business of the Company shall be managed by the Directors (or a
sole
Director if only one is appointed) who may pay all expenses incurred
in
promoting, registering and setting up the Company, and may exercise
all
such powers of the Company but subject to the provisions of the
Companies
Law, or by these Articles, or such regulations, being not inconsistent
with the aforesaid, as may be prescribed by the Company in general
meeting
from time to time, provided, however, that no regulations made
by the
Company in general meeting shall invalidate any prior act of the
Directors
which would have been valid if that regulation had not been
made.
|
| 95 |
The
Directors may from time to time and at any time by powers of attorney
appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or
attorneys
of the Company for such purpose 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 they may think fit, and any such powers of attorney may contain
such
provisions for the protection and convenience of persons dealing
with any
such attorneys as the Directors may think fit and may also authorise
any
such attorney to delegate all or any of the powers, authorities
and
discretions vested in him.
|
| 96 |
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.
|
| 97 |
The
Directors shall cause minutes to be made in books provided for
the
purpose:
|
| (a) |
of
all appointments of officers made by the
Directors;
|
| (b) |
of
the names of the Directors (including those represented thereat
by an
alternate or by proxy) present at each meeting of the Directors
and of any
committee of the Directors;
|
| (c) |
of
all resolutions and proceedings at all meetings of the Company
and of the
Directors and of committees of
Directors.
|
| 98 |
The
Directors on behalf of the Company may pay a gratuity or pension
or
allowance on retirement to any Director who has held any other
salaried
office or place of profit with the Company or to his widow or dependants
and may make contributions to any fund and pay premiums for the
purchase
or provision of any such gratuity, pension or
allowance.
|
| 99 |
The
Directors may exercise all the powers of the Company to borrow
money and
to mortgage or charge its undertaking, property and uncalled capital
or
any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability
or
obligation of the Company or of any third
party.
|
|
100
|
(a) |
The
Directors may from time to time provide for the
management of the affairs
of the Company in such manner as they shall think
fit and the provisions
contained in the next following paragraphs shall
be without prejudice to
the general powers conferred by this
paragraph.
|
|
(b)
|
The
Directors from time to time and at any time may establish any
committees,
local boards or agencies for managing any of the affairs of
the Company
and may appoint any persons to be members of such committees
or local
boards or any managers or agents and may fix their
remuneration.
|
| (c) |
The
Directors from time to time and at any time may delegate to any such
committee, local board, manager or agent any of the powers, authorities
and discretions for the time being vested in the Directors and may
authorise the members for the time being of any such local board,
or any
of them to fill up any vacancies therein and to act notwithstanding
vacancies and any such appointment or delegation may be made on such
terms
and subject to such conditions as the Directors may think fit and
the
Directors may at any time remove any person so appointed and may
annul or
vary any such delegation, but no person dealing in good faith and
without
notice of any such annulment or variation shall be affected
thereby.
|
| (d) |
Any
such delegates as aforesaid may be authorised by the Directors
to
subdelegate all or any of the powers, authorities, and discretions
for the
time being vested in them.
|
| (e) |
Without
prejudice to the freedom of the Directors to establish any other
committees, for so long as the ADSs of the Company are listed or
quoted on
Nasdaq, it shall establish and maintain an Audit Committee as a
committee
of the board, the composition and responsibilities of which shall
comply
with the applicable rules of both the NASD Manual & Notices to
Members, as amended from time to time and the U.S. Sarbanes Oxley
Act of
2002. Unless otherwise permitted under the NASD Manual & Notices to
Members, the Audit Committee shall have at least three members,
comprised
solely of Independent Directors who do not own or control 20% or
more of
any class of voting securities of the Company or such other Directors
as
allowed from time to time and satisfy the following
qualifications:
|
| (i) |
each
is able to read and understand fundamental financial statements,
including
the Company’s balance sheet, income statement, and cash flow statement;
and
|
| (ii) |
at
least one of them has past employment experience in finance or
accounting,
requisite professional experience in accounting, or any other comparable
experience or background which results in the individual Director’s
financial sophistication, including being or have been a chief
executive
officer, chief financial officer or other senior officer with financial
oversight responsibilities.
|
| (f) |
The
Company shall adopt a formal written audit committee charter and
review
and assess the adequacy of the formal written charter on an annual
basis.
The charter shall specify the responsibilities of the Audit Committee
which shall include responsibility for, among other things, ensuring
its
receipt from the outside auditors of the Company of a formal written
statement delineating all relationships between the auditor and
the
Company, and the Audit Committee’s responsibility for actively engaging in
a dialogue with the auditor with respect to any disclosed relationships
or
services that may impact the objectivity and independence of the
auditor
take appropriate action to oversee the independence of the outside
auditor.
|
| (g) |
Unless
a Chairperson is elected by the Directors, the members of the Audit
Committee may designate a chairperson by majority vote of the full
Audit
Committee membership.
|
| (h) |
The
Audit Committee shall meet at least four times annually, or more
frequently as circumstances
dictate.
|
| (i) |
For
so long as the ADSs of the Company are listed or quoted on Nasdaq,
the
Company shall conduct an appropriate review of all material Related
Party
Transactions on an ongoing basis and shall utilize the Audit Committee
for
the review and approval of potential conflicts of interest
situations.
|
| (j) |
Without
prejudice to the freedom of the Directors to establish any other
committees, the Board may establish a Compensation Committee to
assist the
board in reviewing and approving the compensation structure for
the
Company’s directors and officers. Unless otherwise permitted under the
NASD Manual & Notices to Members, for so long as the ADSs of the
Company are listed or quoted on Nasdaq, the Compensation Committee
shall
have at least three members, comprised solely of Independent Directors.
The Compensation Committee shall evaluate the performance of the
Company’s
senior executive officers and approve the compensation for such
senior
executive officers. The Company shall adopt a formal written nomination
charter and assess the adequacy of such formal written charter
on an
annual basis.
|
| (k) |
Without
prejudice to the freedom of the Directors to establish any other
committees, the Board may establish a Nomination Committee to assist
the
board in identifying qualified individuals to become board members
and in
determining the composition of the board and its committees. Unless
otherwise permitted under the NASD Manual & Notices to Members, for so
long as the ADSs of the Company are listed or quoted on Nasdaq,
the
Nomination Committee shall have at least three members, comprised
solely
of Independent Directors. The Company shall adopt a formal written
nomination charter and assess the adequacy of such formal written
charter
on an annual basis.
|
| 101 |
No
Director or proposed Director shall be disqualified by his office
from
contracting with the Company either as vendor, purchaser or otherwise
nor
shall any such contract or any contract or arrangement entered
into by or
on behalf of the Company with any person, company or partnership
of or in
which any Director shall be a member or otherwise interested
be capable on
that account of being avoided, nor shall any Director so contracting
or
being any member or so interested be liable to account to the
Company for
any profit so realised by any such contract or arrangement by
reason only
of such Director holding that office or the fiduciary relationship,
thereby established, provided that (a) such Director shall, if
his
interest in such contract or arrangement is material, declare
the nature
of his interest at the earliest meeting of the Board at which
it is
practicable for him to do so, either specifically or by way of
a general
notice stating that, by reason of the facts specified in the
notice, he is
to be regarded as interested in any contracts of a specified
description
which may subsequently be made by the Company and (b) if such
contract or
arrangement is a Related Party Transaction, such Related Party
Transaction
has been approved by the Audit
Committee.
|
| 102 |
Subject
to any requirement under Applicable Laws, including disclosure
requirements on Related Party Transactions, any Director may continue
to
be or become a director, managing director, joint managing director,
deputy managing director, executive director, manager or other
officer or
member of any other company in which the Company may be interested
and
(unless otherwise agreed between the Company and the Director)
no such
Director shall be liable to account to the Company or the members
for any
remuneration or other benefits received by him as a director, managing
director, joint managing director, deputy managing director, executive
director, manager or other officer or member of any such other
company.
The Directors may exercise the voting powers conferred by the shares
in
any other company held or owned by the Company, or exercisable
by them as
directors of such other company in such manner in all respects
as they
think fit (including the exercise thereof in favour of any resolution
appointing themselves or any of them directors, managing directors,
joint
managing directors; deputy managing directors, executive directors,
managers or other officers of such company) and any Director may
vote in
favour of the exercise of such voting rights in the manner aforesaid
notwithstanding that he may be, or is about to be, appointed a
director,
managing director, joint managing director, deputy managing director,
executive director, manager or other officer of such a company,
and that
as such he is or may become interested in the exercise of such
voting
rights in the manner
aforesaid.
|
| 103 |
A
Director may hold any other office or place of profit with the
Company
(except that of Auditor) in conjunction with his office of Director
for
such period and upon such terms as the Board may determine, and
may be
paid such extra remuneration therefor (whether by way of salary,
commission, participation in profit or otherwise) as the Board
may
determine, and such extra remuneration shall be in addition to
any
remuneration provided for by or pursuant to any other
Article.
|
| 104 |
No
person shall be disqualified from the office of Director or alternate
Director or prevented by such office from contracting with the
Company,
either as vendor, purchaser or otherwise, nor shall any such contract
or
any contract or transaction entered into by or on behalf of the
Company in
which any Director or alternate Director shall be in any way interested
be
or be liable to be avoided, nor shall any Director or alternate
Director
so contracting or being so interested be liable to account to the
Company
for any profit realised by any such contract or transaction by
reason of
such Director holding office or of the fiduciary relation thereby
established; provided that such Related Party Transaction has been
approved by the Audit Committee.
|
| 105 |
The
Directors may, from time to time, appoint one or more of their
body (but
not an alternate Director) to the office of Managing Director
for such
term and at such remuneration (whether by way of salary, or commission,
or
participation in profits, or partly in one way and partly in
another) as
they may think fit, subject to Article 100(j), but his appointment
shall
be subject to determination ipso facto if he ceases for any cause
to be a
Director and no alternate Director appointed by him can act in
his stead
as a Director or Managing
Director.
|
| 106 |
The
Directors may entrust to and confer upon a Managing Director any
of the
powers exercisable by them upon such terms and conditions and with
such
restrictions as they may think fit and either collaterally with
or to the
exclusion of their own powers and may from time to time revoke,
withdraw,
alter or vary all or any of such
powers.
|
| 107 |
Except
as otherwise provided by these Articles, the Directors shall meet
together
for the despatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising
at any
meeting shall be decided by a majority of votes of the Directors
and
alternate Directors present at a meeting at which there is a quorum,
the
vote of an alternate Director not being counted if his appointor
be
present at such meeting. In case of an equality of votes, the Chairman
shall have a second or casting
vote.
|
| 108 |
A
Director or alternate Director may, and the Secretary on the requisition
of a Director or alternate Director shall, at any time summon a
meeting of
the Directors by at least two days' notice in writing to every
Director
and alternate Director which notice shall set forth the general
nature of
the business to be considered unless notice is waived by all the
Directors
(or their alternates) either at, before or after the meeting is
held and,
provided, however, if notice is given in person, by cable, telex
or
telecopy the same shall be deemed to have been given on the day
it is
delivered to the Directors or transmitting organisation as the
case may
be. The provisions of Article 51 shall apply mutatis
mutandis with
respect to notices of meetings of
Directors.
|
| 109 |
The
quorum necessary for the transaction of the business of the Directors
may
be fixed by the Directors and unless so fixed shall be two, a Director
and
his appointed alternate Director being considered only one person
for this
purpose, provided always that if there shall at any time be only
a sole
Director the quorum shall be one. For the purposes of this Article
an
alternate Director or proxy appointed by a Director shall be counted
in a
quorum at a meeting at which the Director appointing him is not
present.
|
| 110 |
The
continuing Directors may act notwithstanding any vacancy in their
body,
but if and so long as their number is reduced below the number
fixed by or
pursuant to these Articles as the necessary quorum of Directors,
the
continuing Director or Directors may act for the purpose of increasing
the
number of Directors to that number or of summoning a general meeting
of
the Company, but for no other
purpose.
|
| 111 |
The
Directors may elect a Chairman of their Board and determine the
period for
which he is to hold office; but if no such Chairman is elected,
or if at
any meeting the Chairman is not present within five minutes after
the time
appointed for holding the same, the Directors present may choose
one of
their number to be Chairman of the
meeting.
|
| 112 |
The
Directors may delegate any of their powers to committees consisting
of
such member or members of the Board of Directors (including Alternate
Directors in the absence of their appointors) as they think fit;
any
committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the
Directors.
|
| 113 |
A
committee may meet and adjourn as it thinks proper. Questions arising
at
any meeting shall be determined by a majority of votes of the members
present, and in the case of an equality of votes the Chairman shall
have a
second or casting vote.
|
| 114 |
All
acts done by any meeting of the Directors or of a committee of
Directors
(including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was
some
defect in the appointment of any Director or alternate Director,
or that
they or any of them were disqualified, be as valid as if every
such person
had been duly appointed and qualified to be a Director or alternate
Director as the case may be.
|
| 115 |
Members
of the Board or of any committee thereof may participate in a meeting
of
the Board or of such committee by means of conference telephone
or similar
communications equipment by means of which all persons participating
in
the meeting can hear each other and participation in a meeting
pursuant to
this provision shall constitute presence in person at such meeting.
A
resolution in writing (in one or more counterparts), signed by
all the
Directors for the time being or all the members of a committee
of
Directors (an alternate Director being entitled to sign such resolution
on
behalf of his appointor) shall be as valid and effectual as if
it had been
passed at a meeting of the Directors or committee as the case may
be duly
convened and held.
|
| 116 |
The
office of a Director shall be
vacated:
|
| (a) |
if
he gives notice in writing to the Company that he resigns the office
of
Director; or
|
| (b) |
if
he absents himself (without being represented by proxy or an alternate
Director appointed by him) from three consecutive meetings of the
Board
without special leave of absence from the Directors, and they pass
a
resolution that he has by reason of such absence vacated office;
or
|
| (c) |
if
he dies, becomes bankrupt or makes any arrangement or composition
with his
creditors generally; or
|
| (d) |
if
he is found to be or becomes of unsound
mind.
|
| 117 |
The
Directors shall be divided into three classes, designated Class
I, Class
II, and Class III, as nearly equal in number as the then total
number of
directors permits. At the 2006 annual meeting of shareholders,
all
Directors shall stand for election. Class I Directors shall be
elected for
a one-year term, Class II Directors for a two-year term and Class
III
Directors for a three-year term. At each succeeding annual meeting
of
shareholders beginning in 2007, successors to the class of Directors
whose
terms expire at that annual meeting shall be elected for a three-year
term. If the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number
of
Directors in each class as nearly equal as possible, and any additional
Directors of any class elected to fill a vacancy resulting from
an
increase in such class shall hold office for a term that shall
coincide
with the remaining term of that class, but in no case will a decrease
in
the number of directors shorten the term of any incumbent Director.
Notwithstanding the foregoing, whenever the holders of any one
or more
classes or series of preferred share issued by the Company shall
have the
right, voting separately by class or series, to elect Directors
at an
annual or special meeting of shareholders, the election, term of
office,
filling of vacancies and other features of such directorships shall
be
governed by the applicable terms of these Articles and any certificate
of
designation creating such class or series of preferred share, and
such
Directors so elected shall not be divided into classes pursuant
to this
Article 117 or considered part of such classes unless expressly
provided
by such terms.
|
|
118
|
(a) |
The
Members may by Special Resolution at any time remove
any Director for
negligence or other reasonable cause before the
expiration of his period
of office notwithstanding anything in these Articles
or in any agreement
between the Company and such Director, and may
by ordinary resolution
elect another person in his stead. Any person so
elected shall hold office
during such term only as the Director in whose
place he is elected would
have held the same if he had not been removed.
Subject to Article 117, the
Directors shall have power at any time and from
time to time to appoint
any person to be a Director, either as an addition
to the existing
Directors or to fill a vacancy resulting from death,
resignation,
retirement, disqualification, removal from office
or any other reason, but
so that the total amount of Directors (exclusive
of alternate directors)
shall not at any time exceed the number fixed in
accordance with these
Articles.
|
|
(b)
|
Nothing
in this Article should be taken as depriving a Director removed
under any
provisions of this Article of compensation or damages payable
to him in
respect of the termination of his appointment as Director or
of any other
appointment or office as a result of the termination of his appointment
as
Director or as derogatory from any power to remove a Director
which may
exist apart from the provision of this
Article.
|
| 119 |
A
Director who is present at a meeting of the Board at which action
on any
Company matter is taken shall be presumed to have assented to the
action
taken unless his dissent shall be entered in the minutes of the
meeting or
unless he shall file his written dissent from such action with
the person
acting as the Chairman or Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered post to such
person
immediately after the adjournment of the meeting. Such right to
dissent
shall not apply to a Director who voted in favour of such
action.
|
|
120
|
(a)
|
The
Company may, if the Directors so determine, have a Seal. The Seal
shall
only be used by the authority of the Directors or of a committee
of the
Directors authorised by the Directors. Every instrument to which
the Seal
has been affixed shall be signed by at least one person who shall
be
either a Director or some officer or other person appointed by
the
Directors for the purpose.
|
|
(b)
|
The
Company may have for use in any place or places outside the Cayman
Islands
a duplicate Seal or Seals each of which shall be a facsimile of
the Seal
and, if the Directors so determine, with the addition on its face
of the
name of every place where it is to be
used.
|
|
(c)
|
A
Director or officer, representative or attorney may without further
authority of the Directors affix the Seal over his signature alone
to any
document of the Company required to be authenticated by him under
Seal or
to be filed with the Registrar of Companies in the Cayman Islands
or
elsewhere wheresoever.
|
|
121
|
The
Company may have a President, a Secretary or Secretary Treasurer
appointed
by the Directors. The Directors may also from time to time appoint
such
other officers as they consider necessary, all for such terms,
at such
remuneration and to perform such duties, and subject to such provisions
as
to disqualification and removal as the Directors from time to time
prescribe.
|
|
122
|
Subject
to the Companies Law, the Directors may from time to time declare
dividends (including interim dividends) and distributions on Shares
outstanding and authorise payment of the same out of the funds
of the
Company lawfully available
therefor.
|
|
123
|
The
Directors may, before declaring any dividends or distributions,
set aside
such sums as they think proper as a reserve or reserves which shall
at the
discretion of the Directors, be applicable for any purpose of the
Company
and pending such application may, at the like discretion, be employed
in
the business of the Company.
|
|
124
|
No
dividend or distribution shall be payable except out of the profits
of the
Company, realised or unrealised, or out of the Share Premium Account
or as
otherwise permitted by the Companies
Law.
|
|
125
|
Subject
to the rights of persons, if any, entitled to Shares with special
rights
as to dividends or distributions, if dividends or distributions
are to be
declared on a class of Shares they shall be declared and paid according
to
the amounts paid or credited as paid on the Shares of such class
outstanding on the record date for such dividend or distribution
as
determined in accordance with these Articles but no amount paid
or
credited as paid on a Share in advance of calls shall be treated
for the
purpose of this Article as paid on the
Share.
|
|
126
|
The
Directors may deduct from any dividend or distribution payable
to any
Member all sums of money (if any) presently payable by him to the
Company
on account of calls or otherwise.
|
|
127
|
The
Board may, with the sanction of the Members in general meeting,
direct
that any dividend be satisfied wholly or in part by the distribution
of
specific assets of any kind and in particular of paid up shares,
debentures or warrants to subscribe securities of any other company,
or in
any one or more of such ways, and where any difficulty arises in
regard to
the distribution the Board may settle the same as it thinks expedient,
and
in particular may disregard fractional entitlements, round the
same up or
down or provide that the same shall accrue to the benefit of the
Company,
and may fix the value for distribution of such specific assets,
or any
part thereof, and may determine that cash payments shall be made
to any
members upon the footing of the value so fixed in order to adjust
the
rights of all parties, and may vest any such specific assets in
trustees
as may seem expedient to the Board and may appoint any person to
sign any
requisite instruments of transfer and other documents on behalf
of the
persons entitled to the dividend and such appointment shall be
effective.
Where required, a contract shall be filed in accordance with the
provisions of the Companies Law and the Board may appoint any person
to
sign such contract on behalf of the persons entitled to the dividend
and
such appointment shall be
effective.
|
|
128
|
Unless
otherwise directed by the Board, any dividend, interest or other
sum
payable in cash to a holder of shares may be paid by cheque or
warrant
sent through the post to the registered address of the member entitled,
or, in case of joint holders, to the registered address of the
person
whose name stands first in the register in respect of the joint
holding or
to such person and to such address as the holder or joint holders
may in
writing direct. Every cheque or warrant so sent shall be made
payable to
the order of the holder or, in the case of joint holders, to the
order of
the holder whose name stands first on the register in respect of
such
shares and shall be sent at his or their risk, and the payment
of any such
cheque or warrant by the bank on which it is drawn shall operate
as a good
discharge to the Company in respect of the dividend and/or bonus
represented thereby, notwithstanding that it may subsequently appear
that
the same has been stolen or that any endorsement thereon has been
forged.
|
|
129
|
The
Company may cease sending such cheques for dividend entitlements
or
dividend warrants by post if such cheques or warrants have been
left
uncashed on two consecutive occasions. However, the Company may
exercise
its power to cease sending cheques for dividend entitlements or
dividend
warrants after the first occasion on which such a cheque or warrant
is
returned undelivered.
|
|
130
|
All
dividends or bonuses unclaimed for one year after having been declared
may
be invested or otherwise made use of by the Board for the exclusive
benefit of the Company until claimed and the Company shall not
be
constituted a trustee in respect thereof or be required to account
for any
money earned thereon. All dividends or bonuses unclaimed for six
years
after having been declared may be forfeited by the Board and shall
revert
to the Company and after such forfeiture no member or other person
shall
have any right to or claim in respect of such dividends or
bonuses.
|
|
131
|
No
dividend or distribution shall bear interest against the Company.
|
|
132
|
(a)
|
The
Company shall be entitled to sell any shares of a member or the
shares to
which a person is entitled by virtue of transmission on death or
bankruptcy or operation of law if and provided
that:
|
|
(i)
|
all
cheques or warrants, not being less than three in number, for any
sums
payable in cash to the holder of such shares have remained uncashed
for a
period of 12 years;
|
|
(ii)
|
the
Company has not during that time or before the expiry of the three
month
period referred to in paragraph (iv) below received any indication
of the
whereabouts or existence of the member or person entitled to such
shares
by death, bankruptcy or operation of
law;
|
|
(iii)
|
during
the 12-year period, at least three dividends in respect of the
shares in
question have become payable and no dividend during that period
has been
claimed by the member; and
|
|
(iv)
|
upon
expiry of the 12-year period, the Company has caused an advertisement
to
be published in the newspapers or by electronic communication in
the
manner in which notices may be served by the Company by electronic
means
as herein provided, giving notice of its intention to sell such
shares,
and a period of three months has elapsed since such
advertisement.
|
|
(b)
|
To
give effect to any sale contemplated by paragraph (a) the Company
may
appoint any person to execute as transferor an instrument of transfer
of
the said shares and such other documents as are necessary to effect
the
transfer, and such documents shall be as effective as if it had
been
executed by the registered holder of or person entitled by transmission
to
such shares and the title of the transferee shall not be affected
by any
irregularity or invalidity in the proceedings relating thereto.
The net
proceeds of sale shall belong to the Company which shall be obliged
to
account to the former member or other person previously entitled
as
aforesaid for an amount equal to such proceeds and shall enter
the name of
such former member or other person in the books of the Company
as a
creditor for such amount. No trust shall be created in respect
of the
debt, no interest shall be payable in respect of the same and the
Company
shall not be required to account for any money earned on the net
proceeds,
which may be employed in the business of the Company or invested
in such
investments (other than shares or other securities in or of the
Company or
its holding company if any) or as the Board may from time to time
think
fit.
|
|
133
|
Notwithstanding
any other provisions of these Articles of the Company or the Applicable
Laws, the Board may fix any date as the record date for any dividend,
distribution, allotment or issue and such record date may be on
or at any
time before or after any date on which such dividend, distribution,
allotment or issue is declared, paid or
made.
|
|
134
|
The
Company may capitalise any sum standing to the credit of any of
the
Company's reserve accounts (including Share Premium Account and
capital
redemption reserve fund) or any sum standing to the credit of profit
and
loss account or otherwise available for distribution and to appropriate
such sum to Members in the proportions in which such sum would
have been
divisible amongst them had the same been a distribution of profits
by way
of dividend and to apply such sum on their behalf in paying up
in full
unissued Shares for allotment and distribution credited as fully
paid up
to and amongst them in the proportion aforesaid. In such event
the
Directors shall do all acts and things required to give effect
to such
capitalisation, with full power to the Directors to make such provisions
as they think fit for the case of Shares becoming distributable
in
fractions (including provisions whereby the benefit of fractional
entitlements accrue to the Company rather than to the Members concerned).
The Directors may authorise any person to enter on behalf of all
of the
Members interested into an agreement with the Company providing
for such
capitalisation and matters incidental thereto and any agreement
made under
such authority shall be effective and binding on all
concerned.
|
|
135
|
The
Directors shall cause proper books of account to be kept with respect
to:
|
|
(a)
|
all
sums of money received and expended by the Company and the matters
in
respect of which the receipt or expenditure takes
place;
|
|
(b)
|
all
sales and purchases of goods by the Company;
and
|
|
(c)
|
the
assets and liabilities of the
Company.
|
|
136
|
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
accounts and books 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 account or book
or
document of the Company except as conferred by the Companies Law
or
authorised by the Directors or by the Company in general
meeting.
|
|
137
|
The
Directors may from time to time cause to be prepared and to be
laid before
the Company in general meeting profit and loss accounts, balance
sheets,
group accounts (if any) and such other reports and accounts as
may be
required by law.
|
|
138
|
The
Board shall make the requisite annual returns and any other requisite
filings in accordance with the Applicable
Laws.
|
|
139
|
The
Directors may appoint an Auditor who shall hold office until removed
from
office by a resolution of the Directors and may fix his or their
remuneration. Notwithstanding the above, for so long as the ADSs
of the
Company are listed or quoted on Nasdaq, the Audit Committee is
directly
responsible for the appointment, remuneration, retention and oversight
of
the Company's Auditors.
|
|
140
|
Every
Auditor shall have a right of access at all times to the books
and
accounts and vouchers of the Company and shall be entitled to require
from
the Directors and officers of the Company such information and
explanation
as may be necessary for the performance of the duties of the
auditors.
|
|
141
|
Auditors
shall, if so required by the Directors, make a report on the accounts
of
the Company during their tenure of office at the next annual general
meeting following their appointment in the case of a company which
is
registered with the Registrar of Companies as an ordinary company,
and at
the next extraordinary general meeting following their appointment
in the
case of a company which is registered with the Registrar of Companies
as
an exempted company, and at any time during their term of office,
upon
request of the Directors or any general meeting of the
Members.
|
|
142
|
Notices
shall be in writing and may be given by the Company to any Member
either
personally or by sending it by post, cable, telex, fax or e-mail
to him or
to his address as shown in the Register of Members (or where the
notice is
given by e-mail by sending it to the e-mail address provided by
such
Member). Any notice, if posted from one country to another, is
to be sent
airmail.
|
|
143
|
(a)
|
Where
a notice is sent by post, service of the notice shall be deemed
to be
effected by properly addressing, pre paying and posting a letter
containing the notice, and shall be deemed to have been received
on the
fifth day (not including Saturdays or Sundays or public holidays)
following the day on which the notice was
posted.
|
|
(b)
|
Where
a notice is sent by cable, telex, or fax, service of the notice
shall be
deemed to be effected by properly addressing, and sending such
notice and
shall be deemed to have been received on the same day that it was
transmitted.
|
|
(c)
|
Where
a notice is given by e-mail service shall be deemed to be effected
by
transmitting the e-mail to the e-mail address provided by the intended
recipient and shall be deemed to have been received on the same
day that
it was sent, and it shall not be necessary for the receipt of the
e-mail
to be acknowledged by the
recipient.
|
|
144
|
A
notice may be given by the Company to the person or persons which
the
Company has been advised are entitled to a Share or Shares in consequence
of the death or bankruptcy of a Member in the same manner as other
notices
which are required to be given under these Articles and shall be
addressed
to them by name, or by the title of representatives of the deceased,
or
trustee of the bankrupt, or by any like description at the address
supplied for that purpose by the persons claiming to be so entitled,
or at
the option of the Company by giving the notice in any manner in
which the
same might have been given if the death or bankruptcy had not
occurred.
|
|
145
|
Notice
of every general meeting shall be given in any manner hereinbefore
authorised to:
|
|
(a)
|
every
person shown as a Member in the Register of Members on the record
date for
such meeting except that in the case of joint holders the notice
shall be
sufficient if given to the joint holder first named in the Register
of
Members;
|
|
(b)
|
every
person upon whom the ownership of a Share devolves by reason of
his being
a legal personal representative or a trustee in bankruptcy of a
Member of
record where the Member of record but for his death or bankruptcy
would be
entitled to receive notice of the
meeting;
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(c)
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the
Auditors;
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(d)
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each
Director and alternate Director;
and
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(e)
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Nasdaq.
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146
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No
Member shall be entitled to require discovery of or any information
in
respect of any detail of the Company's trading or any which is
or may be
in the nature of a trade secret or secret process which may relate
to the
conduct of the business of the Company and which in the opinion
of the
Board would not be in the interests of the Members to communicate
to the
public.
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147
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The
Board shall be entitled to release or disclose any information
in its
possession, custody or control regarding the Company or its affairs
to any
of its Members including, without limitation, information contained
in the
Register of Members and transfer books of the
Company.
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148
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Subject
to Article 127, if the Company shall be wound up the liquidator
may, with
the sanction of a Special Resolution of the Company and any other
sanction
required by the Companies Law, divide amongst the Members 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 that purpose value
any
assets and determine how the division shall be carried out as between
the
Members or different classes of Members. The liquidator may, with
the like
sanction, vest the whole or any part of such assets in trustees
upon such
trusts for the benefit of the Members as the liquidator, with the
like
sanction, shall think fit, but so that no Member shall be compelled
to
accept any asset upon which there is a
liability.
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148A
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If
the Company shall be wound up, and the assets available for distribution
amongst the Members as such shall be insufficient to repay the
whole of
the paid-up capital, such assets shall be distributed so that,
as nearly
as may be, the losses shall be borne by the Members in proportion
to the
capital paid up, or which ought to have been paid up, at the commencement
of the winding up on the shares held by them respectively. And
if in a
winding up the assets available for distribution amongst the Members
shall
be more than sufficient to repay the whole of the capital paid
up at the
commencement of the winding up, the excess shall be distributed
amongst
the Members in proportion to the capital paid up at the commencement
of
the winding up on the shares held by them respectively. This Article
is to
be without prejudice to the rights of the holders of shares issued
upon
special terms and conditions.
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149
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Every
Director, Auditor or officer of the Company shall be indemnified
out of
the assets of the Company against any liability incurred by him
as a
result of any act or failure to act in carrying out his functions
other
than such liability (if any) that he may incur by his own wilful
neglect
or default. No such Director, Auditor or officer shall be liable
to the
Company for any loss or damage in carrying out his functions unless
that
liability arises through the wilful neglect or default of such
Director,
Auditor or officer.
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150
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Unless
the Directors otherwise prescribe, the financial year of the Company
shall
end on 31st December in each year and shall begin on 1st January
in each
year.
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151
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(a)
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The
Board may establish and maintain or procure the establishment and
maintenance of any contributory or non-contributory pension or
provident
or superannuation funds or (with the sanction of an ordinary resolution)
employee or executive share option schemes for the benefit of,
or 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 of any company which is a subsidiary
of the
Company, or is allied or associated with the Company or with any
such
subsidiary company, or who are or were at any time directors or
officers
of the Company or of any such other company as aforesaid, and holding
or
who have held any salaried employment or office in the Company
or such
other company, and the wives, widows, families and dependents of
any such
persons. The Board may also establish and subsidise or subscribe
to any
institutions, associations, clubs or funds calculated to be for
the
benefit of or to advance the interests and well being of the Company
or of
any such other company as aforesaid, and may make payments for
or towards
the insurance of any such persons as aforesaid, and subscribe or
guarantee
money for charitable or benevolent objects or for any exhibition
or for
any public, general or useful object. The Board may do any of the
matters
aforesaid, either alone or in conjunction with any such other company
as
aforesaid. Any 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.
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(b)
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For
so long as the ADSs of the Company are quoted or listed on Nasdaq,
a
sanction of an ordinary resolution by the Members shall be obtained
prior
to any issuance of any equity or material amendment to any equity
compensation plan as required by applicable rules of the NASD Manual
and
Notices to Members, as amended from time to
time.
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152
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Subject
to the Companies Law and to any quorum, voting or procedural requirements
expressly imposed by these Articles in regard to the variation
of rights
attached to a specific class of Shares of the Company, the Company
may at
any time and from time to time by Special Resolution change the
name of
the Company or alter or amend these Articles or the Memorandum,
in whole
or in part.
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153
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If
the Company is exempted as defined in the Companies Law, it shall,
subject
to the provisions of the Companies Law and with the approval of
a Special
Resolution, have the power to register by way of continuation as
a body
corporate under the laws of any jurisdiction outside the Cayman
Islands
and to be deregistered in the Cayman
Islands.
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