TERRITORY OF THE British
Virgin Islands
BVI BUSINESS COMPANIES ACT 2004
MEMORANDUM OF
ASSOCIATION
OF
ACG METALS
LIMITED
(the
Company)
A Company
Limited By Shares
1
NAME
1.1.
The name of the Company is ACG Metals
Limited.
2
STATUS
2.1.
The Company is a company limited by
shares.
3
REGISTERED OFFICE AND REGISTERED AGENT
3.1.
The first registered office of the Company is at
Craigmuir Chambers, Road Town, Tortola, VG 1110, British Virgin
Islands.
3.2.
The first Registered Agent is Harneys Corporate
Services Limited of Craigmuir Chambers, P.O. Box 71, Road Town,
Tortola, VG 1110, British Virgin Islands.
3.3.
The Company may, by Resolution of Shareholders or
by Resolution of Directors, change the location of its registered
office or change the Registered Agent.
3.4.
If at any time the Company does not have a
Registered Agent it may, by Resolution of Shareholders or
Resolution of Directors, appoint a Registered Agent.
3.5.
Any change of registered office or Registered
Agent will take effect on the registration by the Registrar of a
notice of the change filed by the existing Registered Agent or a
legal practitioner in the British Virgin Islands acting on behalf
of the Company.
3.6.
The Registered Agent shall:
(a)
act on the instructions of the Directors if those
instructions are contained in a Resolution of Directors and a copy
of the Resolution of Directors is made available to the
Registered Agent;
and
(b)
recognise and accept the appointment or removal of
a Director by the Shareholders.
4
CAPACITY AND POWERS
4.1.
Subject to the Act and any other British Virgin
Islands legislation, the Company has, irrespective of corporate
benefit:
(a)
full capacity to carry on or undertake any
business or activity, do any act, or enter into any transaction;
and
(b)
for the purposes of paragraph (a), full rights, powers, and
privileges.
4.2.
For the purposes of section 9(4) of the Act, there
are no limitations on the business that the Company may carry
on.
4.3.
Each Reserved Matter is subject to the
restrictions set out in Clause 7.
5
NUMBER AND CLASSES OF SHARES
5.1.
Shares in the Company shall be issued in the
currency of the United States of America.
5.2.
The Company is authorised to issue an unlimited
number of Class A Ordinary Shares with no par value.
5.3.
The Company shall not issue fractional Shares and
fractional Shares generated by any corporate action may, at the
discretion of the Directors, be rounded down to the nearest whole
Share.
5.4.
Shares may be issued in one (1) or more series of
Shares as the Directors may by Resolution of Directors determine
from time to time.
6
RIGHTS OF SHARES
6.1.
Each Class A Ordinary Share confers upon the
Shareholder:
(a)
the right to notice of and to attend any
Shareholder Meeting;
(b)
the right to one (1) vote on any Resolution of
Shareholders;
(c)
the right to an equal share in any dividend paid
by the Company with each other Class A Ordinary Share;
(d)
the right to an equal share in the distribution of
the surplus assets of the Company with each other Class A Ordinary
Share; and
(e)
such other rights and entitlements as may be
specified in the Memorandum and Articles.
7
RESERVED MATTER
7.1.
The following constitute Reserved Matters:
(a)
amending this Clause 7.1; and
(b)
amending Regulation 3.
7.2.
Notwithstanding anything else in this Memorandum
or the Articles, a Reserved Matter must be approved by a Reserved
Matter Shareholder Resolution.
8
Variation of rights
8.1.
The rights conferred upon the holders of the
Shares of any class may only be varied, whether or not the Company
is in liquidation, with the consent in writing of the holders of
more than two-thirds (66.6%) of the issued Shares of that class or
by a resolution approved at a duly convened and constituted meeting
of the Shares of that class by the affirmative vote of more than
two-thirds (66.6%) of the votes of the Shares of that class which
were present at the meeting and were voted.
8.2.
The rights conferred upon the holders of the
Shares of any class 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 equally
with such existing Shares.
9
REGISTERED SHARES
9.1.
The Company shall issue registered Shares only.
The Company is not authorised to issue bearer Shares, convert
registered Shares to bearer Shares or exchange registered Shares
for bearer Shares.
10
AMENDMENT OF THE MEMORANDUM AND THE ARTICLES
10.1. Subject to Clause 7
and 8, the Company may only amend this Memorandum or the Articles
by either:
(a)
a written resolution approved by a resolution
consented to in writing by shareholders representing at least
two-thirds (66.6%) of the votes of the Shares entitled to vote on
such resolution;
(b)
or a resolution approved at a duly convened and
constituted Shareholder Meeting by the affirmative vote of at least
two-thirds (66.6%) of the votes of the Shares entitled to vote
thereon which were present at the meeting and were
voted.
10.2. Any amendment of this Memorandum or the Articles will take
effect from the date that the notice of amendment, or restated
Memorandum and Articles incorporating the amendment, is registered
by the Registrar or from such other date as determined pursuant to
the Act.
11
DEFINITIONS AND INTERPRETATION
11.1. In
this Memorandum and the attached Articles, if not inconsistent with
the subject or context:
Act
means the BVI Business Companies Act 2004 and
includes the BVI Business Companies Regulations 2012 and any other
regulations made under the Act.
Annual General
Meeting has the meaning given to it
at Regulation 8.2.
Appointing
Director has the meaning given to it
at Regulation 13.5.
Articles
means the attached articles of association of the
Company.
Audit Committee
has the meaning given to it at Regulation
23.13.
Board
means the board of Directors.
Business Day
means any day which is not a Saturday, Sunday or
recognised public holiday in the British Virgin Islands, England
and Wales, or in the United States of America.
Co-Sponsor
means the sponsors of the Company at the Effective
Date.
Class A Ordinary
Shareholders means holders of Class
A Ordinary Shares.
Class A Ordinary
Shares means the Class A Ordinary
shares issued from time to time.
Directors
means directors of the Company.
Disapplication
has the meaning given to it at Regulation
3.1.
Effective Date
means [to be the date of adoption of these
M&As] 2024.
Equity
Securities has the meaning given to
it at Regulation 3.1.
Excess
Equity
Securities has the meaning given to
it at Regulation 3.1(c).
FCA
means the UK Financial Conduct
Authority.
Going Private
Transaction means any transaction
(including any acquisition, merger, arrangement, amalgamation, or
other business combination) involving or that would
involve:
(a)
any person beneficially or legally owning,
directly or indirectly, all outstanding securities of the Company;
or
(b)
the consummation of the sale or disposition by the
Company of all, or substantially all of, the Company's
assets.
Incentive
Securities means:
(a)
any issue of Shares;
(b)
any options to acquire Equity Securities or
similar awards granted; or
(c)
any Equity Securities issued upon exercise of
options or awards granted (whether before or after the
Effective Date),
pursuant to any Incentive Scheme,
which is in existence on the Effective Date or subsequently
approved by a Resolution of Directors pursuant to Regulation
11.3.
Incentive
Scheme means any bona fide:
(a)
share incentive, share option, share trust, profit
sharing, bonus, or other incentive scheme or arrangement;
or
(b)
scheme providing any bonus, commission or
remuneration of any sort calculated by reference to turnover,
profits, sales, or performance,
for or affecting:
(i)
any bona
fide current or former employees, non-executive directors,
or consultants (or their personal service companies) of the Company
or any subsidiary of the Company; or
(ii)
the spouses, civil partners, surviving spouses,
surviving civil partners, or minor children, or stepchildren of
such individuals.
Independent Non-Executive
Director means a non-executive
Director of the Company who is considered by the Board to be
independent for the purposes of the UK Corporate Governance
Code.
Listing Rules
means the listing rules of the FCA as amended from
time to time.
London Stock
Exchange means London Stock Exchange
plc.
Main Market
means the main market operated by the London Stock
Exchange.
Memorandum
means this memorandum of association of the
Company.
Official List
means the official list maintained by the
FCA.
person
includes individuals, corporations, trusts, the
estates of deceased individuals, partnerships, and unincorporated
associations of persons.
Prohibited
Transaction has the meaning given to
it at Regulation 7.8.
Proscribed
Powers means the powers
to:
(a)
amend this Memorandum or the Articles;
(b)
designate committees of Directors;
(c)
delegate powers to a committee of
Directors;
(d)
appoint or remove Directors;
(e)
appoint or remove an agent;
(f)
approve a plan of merger, consolidation, or
arrangement;
(g)
make a declaration of solvency or to approve a
liquidation plan; or
(h)
make a determination that immediately after a
proposed distribution the value of the Company's assets will exceed its liabilities
and the Company will be able to pay its debts as they fall
due.
Register of
Directors means the register of
directors of the Company.
Register of
Members means the register of
members of the Company.
Registered
Agent means the registered agent of
the Company.
Registrar
means the BVI Registrar of Corporate
Affairs.
Reserved Matter
has the meaning given to it at Clause
7.1.
Reserved Matter Shareholder
Resolution means:
(a)
a resolution approved at a duly convened and
constituted Shareholder Meeting
by the affirmative vote of at least seventy five
(75%) of the votes of the Shares of the Shareholders entitled to
vote thereon which were present at the meeting and voted;
or
(b)
a resolution consented to in writing by at least
seventy five (75%) of the votes of the Shares entitled to vote on
such resolution.
Resolution of
Directors means either:
(a)
a resolution approved at a duly convened and
constituted meeting of Directors or of a committee of Directors by
the affirmative vote of a majority of the Directors present at the
meeting who voted except (i) in the circumstances specified in
Regulation 13.14 and (ii) that where a Director is given more than one (1)
vote, they shall be counted by the number of votes they cast for
the purpose of establishing a majority; or
(b)
a resolution consented to in writing by an absolute
majority of the total number of Directors or by an absolute majority
of all the members of a committee of Directors, as the case may
be.
Resolution of
Shareholders means
either:
(a)
a resolution approved at a duly convened and
constituted Shareholder Meeting
by the affirmative vote of a majority of the votes
of the Shares of the Shareholders entitled to vote thereon which
were present at the meeting and voted; or
(b)
a resolution
consented to in writing by a majority of the votes
of the Shares entitled to vote on such resolution.
Sanctioned
Shares has the meaning given to it
at Regulation 7.8.
Seal
means any seal which has been duly adopted as the
common seal of the Company.
Securities Act
means the U.S. Securities
Act of 1933.
Share
means a share issued or to be issued by the
Company.
Shareholder
means a person whose name is entered in the
Register of Members as the holder of one (1) or more
Shares.
Shareholder
Meeting means a meeting of
Shareholders held in accordance with the provisions of the
Articles.
U.S. Investment Company
Act means the U.S. Investment
Company Act of 1940, as amended and the rules adopted
thereunder.
Warrant
Instrument means an instrument
constituting the Warrants executed by the Company.
Warrants
means any warrants to subscribe for Shares issued
or to be issued pursuant to a Warrant Instrument.
written
or any term of like import includes information
generated, sent, received, or stored by electronic, electrical,
digital, magnetic, optical, electromagnetic, biometric, or photonic
means, including electronic data interchange, electronic mail,
telegram, telex, or telecopy, and in writing
shall be construed accordingly.
11.2. In
this Memorandum and the Articles, unless the context otherwise
requires, a reference to:
(a)
a Clause is a reference to a clause of
this Memorandum;
(b)
a Regulation is a reference to a
regulation of the Articles;
(c)
voting by Shareholders is a reference to the
casting of the votes attached to the Shares held by the Shareholder
voting;
(d)
a provision of law (including the Act) is a
reference to that provision as amended or re-enacted;
(e)
this Memorandum or the Articles is a reference to
those documents as amended; and
(f)
the singular includes the plural and vice
versa.
11.3. Where a period of time is expressed as a number of days, the
days on which the period begins and ends are not included in the
computation of the number of days.
11.4. Any reference to a month shall be construed as a reference to
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month and a
reference to a period of several months shall be construed
accordingly.
11.5. Any words or expressions defined in the Act bear the same
meaning in this Memorandum and the Articles unless the context
otherwise requires or they are otherwise defined in this Memorandum
or the Articles.
11.6. Headings are inserted for convenience only and shall be
disregarded in interpreting this Memorandum and the
Articles.
TERRITORY OF THE British
Virgin Islands
BVI BUSINESS COMPANIES ACT 2004
aRTICLES OF
ASSOCIATION
OF
ACG METALS
Limited
A Company
Limited by Shares
1.
DISAPPLICATION OF
THE ACT
1.1.
The following
sections of the Act shall not apply to the
Company:
(a)
section 46 (Pre-emptive rights);
(b)
section 60 (Process for acquisition of own
shares);
(c)
section 61 (Offer to one or more
shareholders);
(d)
section 62 (Shares redeemed otherwise than at the
option of company); and
(e)
section 175 (Disposition of assets).
2
SHARES
2.1.
Any issue of Shares shall be subject to
Regulation 3 and
Regulation 7.8.
2.2.
Subject to the provisions, if any, in the
Memorandum or these Articles (and to any direction that may be
given by the Company at a Shareholder Meeting), the Act and, where
applicable, the rules of the London Stock Exchange and/or any
competent regulatory authority, and without prejudice to any rights
attached to any existing Shares, the Directors may allot, issue,
grant options over, or otherwise dispose of Shares with or without
preferred, deferred, or other rights or restrictions, whether in
regard to a dividend or other distribution, voting, return of
capital, or otherwise and to such persons, at such times, and on
such other terms as they think proper, and may also (subject to the
Act) vary such rights.
2.3.
Subject to Clause 5.3, the Company may issue
securities in the Company, which may be comprised of whole Shares,
rights, options, Warrants, or convertible securities or securities
of similar nature conferring the right upon the holders thereof to
subscribe for, purchase, or receive any class of Shares or other
securities in the Company, upon such terms as the Directors may
from time to time determine.
2.4.
Upon request, a Shareholder is entitled to a
certificate signed by a Director or officer of the Company, or any
other person authorised by Resolution of Directors, or under the
Seal specifying the number of Shares held by them and the signature
of the Director, officer, or authorised person and the Seal may be
facsimiles.
2.5.
Every certificate shall bear such legend, if any,
as required by the Company.
2.6.
Any Shareholder receiving a certificate shall
indemnify and hold the Company and its Directors and officers
harmless from any loss or liability which it or they may incur by
reason of any wrongful or fraudulent use or representation made by
any person by virtue of the possession thereof. If a
certificate for Shares is worn out or lost it may be renewed on
production of the worn out certificate or on satisfactory proof of
its loss together with such indemnity as may be required by
Resolution of Directors.
2.7.
If several persons are registered as joint holders
of any Shares, any one of such persons may give an effectual
receipt for any distribution.
2.8.
No Shares may be issued for a consideration other
than money, unless a Resolution of Directors has been passed
stating:
(a)
the amount to be credited for the issue of the
Shares; and
(b)
that, in their opinion, the present cash value of
the non-money consideration for the issue is not less than the
amount to be credited for the issue of the Shares.
2.9.
The Company shall keep a Register of Members
containing:
(a)
the names and addresses of the persons who hold
Shares;
(b)
the number of each class and series of Shares held
by each Shareholder;
(c)
the date on which the name of each Shareholder was
entered in the Register of
Members; and
(d)
the date on which any person ceased to be a
Shareholder.
2.10. The Register of Members may be in any such form as the
Directors may approve, but if it is in magnetic, electronic, or
other data storage form, the Company must be able to produce
legible evidence of its contents. Until the Directors otherwise
determine, the magnetic, electronic, or other data storage form
shall be the original Register of Members.
2.11. A
Share is deemed to be issued when the name of the Shareholder is
entered in the Register of Members.
3
FURTHER ISSUE OF SHARES: PRE-EMPTION RIGHTS
3.1.
Unless and until disapplied by a Reserved Matter
Shareholder Resolution (Disapplication), and then only within
the terms of the Disapplication, the following pre-emptive
provisions will apply to any issue of Shares or any other equity
securities that can be issued by the Company (including, but not
limited to, Warrants and other rights to subscribe for, or to
convert securities into, ordinary shares of the Company)
(Equity
Securities):
(a)
if the Company proposes to allot and issue any
Equity Securities, including, without limitation:
(i)
make any transfers out of treasury of;
(ii)
convert any security into;
(iii)
grant any rights to subscribe for; or
(iv)
grant any rights to subscribe for any securities
convertible into,
Equity Securities in the Company,
whether conditional or unconditional, and whether such Equity
Securities participate in dividends and/or distributions up to a
specified amount or not, those Equity Securities shall not be
allotted or issued to any person unless the Company has first
offered them to all Shareholders on the date of the offer on the
same or more favourable terms, as those Equity Securities are being
offered to other persons on a pari passu and pro rata basis to the
number of Equity Securities held by those holders (as nearly as
possible without involving fractions);
(b)
an offer shall be in writing, shall be open for
acceptance for a period of ten (10) Business Days from the date of
the offer and shall give details of the number and subscription
price of the relevant Equity Securities, with a further five (5)
Business Days from the date on which acceptance of the offer is
received by the Company provided to each Shareholder to fund the
respective proportion of the Equity Securities that are subject of
this acceptance;
(c)
the offer may stipulate that any Shareholder who
wishes to subscribe for a number of Equity Securities in excess of
the proportion to which they are entitled shall, in their
acceptance, state the number of excess Equity Securities
(Excess Equity
Securities) for which they wish to subscribe; and
(d)
this Regulation 3.1
shall not apply to the allotment and issue of the
following Equity Securities:
(i)
to an allotment and issue of Equity Securities
that does not exceed 10% of the total authorised Shares of the
Company prior to the first Annual General Meeting following the
Effective Date and subject always to subsequent approval at each
following Annual General Meeting;
(ii)
to any Incentive Securities;
(iii)
to any Equity Securities allotted, as part of a
bonus issue, proportionately to all Shareholders;
(iv)
to any Equity Securities allotted as part of a
restructuring plan or equivalent measures approved by the relevant
court in accordance with applicable provisions under the laws of the British Virgin
Islands;
(v)
to any allotment as all or part of the
consideration for any bona
fide business combination transaction, merger, or
acquisition of a business or asset which has been approved by
Shareholders representing not less than 75% of the votes of the
Shares in the Company;
(vi)
to any rights to subscribe for Equity Securities
(including, pursuant to any Warrants) existing at the Effective
Date; or
(vii)
to any Equity Securities issued pursuant to the
conversion of any convertible loans which were provided to the
Company prior to the Effective Date.
3.2.
Any Equity Securities not accepted by Shareholders
pursuant to the offer made to them in accordance with
Regulation 3.1 shall be used for satisfying any requests for Excess Equity
Securities made pursuant to Regulation 3.1. If there are insufficient Excess
Equity Securities to satisfy such requests, the Excess Equity
Securities shall be allotted to the applicants pro rata to the
number of Shares held by the applicants immediately before the
offer was made to Shareholders in accordance with Regulation
3.1 (as nearly as possible
without involving fractions or increasing the number of Excess
Equity Securities allotted to any Shareholder beyond that applied
for by that Shareholder). After that allotment, any Excess Equity
Securities remaining shall be offered to any other person as the
Directors may determine, at the same price and on the same terms as
the offer to the Shareholders.
4
REDEMPTION OF SHARES AND TREASURY SHARES
4.1.
The Company may purchase, redeem, or otherwise
acquire and hold its own Shares save that the Company may not
purchase, redeem, or otherwise acquire its own Shares without the
consent of Shareholders whose Shares are to be purchased, redeemed,
or otherwise acquired unless the Company is permitted by the Act or
any other provision in the Memorandum or Articles to purchase,
redeem, or otherwise acquire the Shares without their
consent.
4.2.
The Company may acquire its own fully paid Shares
for no consideration by way of surrender of the Shares to the
Company by the person holding the Shares. Any such surrender shall
be evidenced in writing and signed by the person holding the
Shares.
4.3.
The Company may only offer to purchase, redeem, or
otherwise acquire Shares if the Resolution of Directors authorising
the purchase, redemption, or other acquisition contains a statement
that the Directors are satisfied, on reasonable grounds, that
immediately after the purchase, redemption, or other acquisition
the value of the Company's assets will exceed its liabilities
and the Company will be able to pay its debts as they fall
due.
4.4.
Shares that the Company purchases, redeems, or
otherwise acquires may be cancelled or held as treasury shares
provided that the number of Shares purchased, redeemed, or
otherwise acquired and held as treasury shares, when aggregated
with Shares of the same class already held by the Company as
treasury shares, may not exceed fifty (50%) of the Shares of that
class previously issued by the Company excluding Shares that have
been cancelled. Shares which have been cancelled shall be available
for reissue.
4.5.
All rights and obligations attaching to a treasury
share are suspended and shall not be exercised by the Company while
it holds the Share as a treasury share.
4.6.
Treasury shares may be transferred by the Company
on such terms and conditions (not otherwise inconsistent with the
Memorandum and the Articles) as the Company may by Resolution of
Directors determine.
5
MORTGAGES AND CHARGES OF SHARES
5.1.
Shareholders may mortgage or charge their
Shares.
5.2.
There shall be entered in the Register of Members
at the written request of the Shareholder:
(a)
a statement that the Shares held by them are
mortgaged or charged;
(b)
the name of the mortgagee or chargee;
and
(c)
the date on which the particulars specified in
subparagraphs (a) and (b) are
entered in the Register of
Members.
5.3.
Where particulars of a mortgage or charge are
entered in the Register of Members, such particulars may be
cancelled:
(a)
with the written consent of the named mortgagee or
chargee or anyone authorised to act on their behalf; or
(b)
upon evidence satisfactory to the Directors of the
discharge of the liability secured by the mortgage or charge and
the issue of such indemnities as the Directors shall consider
necessary or desirable.
5.4.
Whilst particulars of a mortgage or charge over
Shares are entered in the Register of Members pursuant to this
Regulation:
(a)
no transfer of any Share the subject of those
particulars shall be effected;
(b)
the Company may not purchase, redeem, or otherwise
acquire any such Share; and
(c)
no replacement certificate shall be issued in
respect of such Shares,
without the written consent of the
named mortgagee or chargee.
5.5.
The Directors may not resolve to refuse or delay
the transfer of a Share pursuant to the enforcement of a valid
security interest created over the Share.
6
FORFEITURE
6.1.
Shares that are not fully paid on issue are
subject to the forfeiture provisions set forth in this Regulation
and for this purpose Shares or securities issued for a promissory
note, other written obligation to contribute money or property, or
a contract for future services are deemed to be not fully
paid.
6.2.
A written notice of call specifying the date for
payment to be made shall be served on the Shareholder who defaults
in making payment in respect of the Shares.
6.3.
The written notice of call referred to in
Regulation 6.2 shall name a further
date not earlier than the expiration of fourteen (14) days from the
date of service of the notice on or before which the payment
required by the notice is to be made and shall contain a statement
that in the event of non-payment at or before the time named in the
notice the Shares, or any of them, in respect of which payment is
not made will be liable to be forfeited.
6.4.
Where a written notice of call has been issued
pursuant to Regulation 6.2
and the requirements of the notice have not been
complied with, the Directors may, at any time before tender of
payment, forfeit and cancel the Shares to which the notice
relates.
6.5.
If a Shareholder intends to offer, sell, transfer,
assign, novate, or otherwise dispose of any Shares or Warrants they
shall do so only in compliance with an exemption from the
registration requirements of the Securities Act and under
circumstances which will not require the Company to register under
the U.S. Investment Company Act.
6.6.
The Company is under no obligation to refund any
moneys to the Shareholder whose Shares have been cancelled pursuant
to Regulation 6.4 and
6.5 and that Shareholder
shall be discharged from any further obligation to the
Company.
7
TRANSFER OF SHARES and warrants
7.1.
A Share may, subject to the provisions of the
Articles, be transferred subject to the prior or subsequent
approval of the Company contained in a Resolution of Shareholders
or a Resolution of Directors.
7.2.
Shares may be transferred by a written instrument
of transfer signed by the transferor and containing the name and
address of the transferee, which shall be sent to the Company for
registration, provided that such transfer also complies with
applicable laws of England and Wales. If the Shares in question
were issued in conjunction with rights, options, or warrants issued
on terms that one cannot be transferred without the other, the
Directors shall refuse to register the transfer of any such Share
without evidence satisfactory to them of the like transfer of such
option or warrant.
7.3.
In accordance with Section 54(A) of the Act, in
addition to the above, the instrument of transfer of any Share
shall be in writing in the usual or common form or in a form
prescribed by the London Stock Exchange or in any other form
approved by the officers of the Company and shall be executed by or
on behalf of the transferor (and if the Directors so require,
signed by or on behalf of the transferee) and may be under hand or,
if the transferor or transferee is a clearing house or its
nominee(s), by hand or by machine imprinted signature or by such
other manner of execution as the Directors may approve from time to
time.
7.4.
The transfer of a Share is effective when the name
of the transferee is entered on the Register of Members.
7.5.
If the Directors are satisfied that an instrument
of transfer relating to Shares has been signed but that the
instrument has been lost or destroyed, they may resolve by
Resolution of Directors:
(a)
to accept such evidence of the transfer of Shares
as they consider appropriate; and
(b)
that the transferee's name should be entered in
the Register of Members notwithstanding the absence of the instrument of
transfer.
7.6.
The personal representative of a deceased
Shareholder may transfer a Share even though the personal
representative is not a Shareholder at the time of the
transfer.
7.7.
The Directors may not resolve to refuse or delay
the transfer of a Share unless:
(a)
the Shareholder has failed to pay an amount due in
respect of the Share; or
(b)
such transfer would breach or cause a breach
of:
(i)
the rules of the London Stock Exchange or any
stock exchange on which the Shares may be listed; or
(ii)
applicable law or regulation at such times and for
such periods as the Directors may from time to time
determine.
7.8.
Regulations 7.9
and 7.10
shall apply to any issue, transfer, or disposal of
any interest in a Share (Sanctioned Shares) which would result
in the Company becoming a sanctioned entity (Prohibited
Transaction).
7.9.
Where a Prohibited Transaction occurs, none of the
rights vested in a Shareholder relating to the Sanctioned Shares
may be exercised, and all such rights are suspended until
Regulation 7.10 has
been complied with and such Shares have been transferred to a third
party. This includes but is not limited to any right to:
(a)
attend or be counted in the quorum or vote either
personally or by proxy at any Shareholder Meeting or at any
separate meeting of the holders of any class of Shares or upon any
poll or to exercise any other right or privilege in relation to any
Shareholder Meeting or any meeting of the holders of any class of
Shares;
(b)
vote on any Resolution of Shareholders or consent
to any other corporate action;
(c)
receive dividends or other distributions in
relation to such Shares (whether or not declared before or after
the suspension);
(d)
redeem or convert such Shares; or
(e)
receive any surplus assets in the liquidation of
the Company.
7.10. The Company will, no later than five (5) Business Days after
becoming aware a Prohibited Transaction has taken place, cause the
Sanctioned Shares to be sold on the open market in a transaction
which is not a Prohibited Transaction (including, where such
Sanctioned Shares are held in dematerialised form, by procuring the
transfer of the depository interest representing the Sanctioned
Shares), the cash proceeds of which will be delivered to the
relevant Shareholder(s), subject to:
(a)
deduction from any such cash proceeds of any
applicable withholding taxes and of an amount equal to any stamp
duty, stamp duty reserve tax, or any other capital gain, net
income, issue, transfer, registration, financial transaction, or
documentary tax that may arise or be paid as a consequence of such
sale; and
(b)
the delivery by the relevant Shareholder of any
other information required by law or reasonably required by the
Company.
8
MEETINGS AND CONSENTS OF ShareholderS
8.1.
The Board may convene a Shareholder Meeting at
such times and in such manner and places within or outside the
British Virgin Islands as the Director considers necessary or
desirable.
8.2.
Notwithstanding 8.1, the Company shall hold at least
one (1) Shareholder Meeting in every calendar year which shall be
designated as an Annual
General Meeting.
There shall be no more than one (1) year between each Annual
General Meeting. Unless the context otherwise requires, reference
in these Articles to a Shareholder Meeting shall include an Annual
General Meeting.
8.3.
The Directors shall give not less than twenty-one
(21) days' notice of an Annual General Meeting.
8.4.
Upon the written request of Shareholders entitled
to exercise thirty (30%) or more of the voting rights in respect of
the matter for which the Shareholder Meeting is requested the
Directors shall convene a Shareholder Meeting.
8.5.
Subject to Regulation 8.3 which provides for a longer notice
period for Annual General Meetings, a Director convening a
Shareholder Meeting shall give not less than ten (10) days' notice
of a Shareholder Meeting to:
(a)
those Shareholders whose names on the date the
notice is given appear as Shareholders in the Register of Members and are entitled
to vote at the Shareholder
Meeting; and
(b)
the other Directors.
8.6.
The notice must specify if the Shareholder Meeting is an Annual
General Meeting. Any other meeting shall be considered an
extraordinary general meeting.
8.7.
Notice of a Shareholder Meeting may be given in
writing or by electronic means. If notice is sent by electronic
means, it shall be deemed to have been given when the communication
is electronically transmitted. Notice shall be deemed to have been
validly given if notice is published on the Company's website and
via a Regulatory News Service (RNS) announcement, regardless of
whether any communication is sent to individual Shareholders by any
means, and in such case shall be deemed to have been given on the
latter of the two to occur.
8.8.
The Director convening a Shareholder Meeting may
fix as the record date for determining those Shareholders that are
entitled to vote at the Shareholder Meeting the date notice is
given of the Shareholder Meeting, or such other date as may be
specified in the notice, being a date not earlier than the date of
the notice.
8.9.
A Shareholder Meeting held in contravention of the
requirement to give notice is valid if it is so agreed:
(a)
in the case of an Annual General Meeting, by all
the Shareholders entitled to attend and vote at the Annual General
Meeting; and
(b)
in the case of any other Shareholder Meeting, if a
majority in number of the Shareholders holding at least ninety
percent (90%) of the total voting rights on all the matters to be
considered at the Shareholder Meeting have waived notice of the
Shareholder Meeting and, for this purpose, the presence of a
Shareholder at the Shareholder Meeting shall constitute waiver in
relation to all the Shares which that Shareholder holds.
8.10. The inadvertent failure of a Director who convenes a
Shareholder Meeting to give notice of a Shareholder Meeting to a
Shareholder or another Director, or the fact that a Shareholder or
another Director has not received notice, does not invalidate the
Shareholder Meeting.
8.11. A
Shareholder may be represented at a Shareholder Meeting by a proxy
who may speak and vote on behalf of the Shareholder.
8.12. The instrument appointing a proxy shall be produced at the
place designated for the Shareholder Meeting before the time for
holding the Shareholder Meeting at which the person named in such
instrument proposes to vote. The notice of the Shareholder Meeting
may specify an alternative or additional place or time at which the
proxy shall be presented.
8.13. The instrument appointing a proxy shall be in substantially
the following form or such other form as approved by the Directors
or as the chair of the Shareholder Meeting shall accept as properly
evidencing the wishes of the Shareholder appointing the
proxy.
ACG METALS LIMITED
I/We being a Shareholder of the
above Company HEREBY APPOINT …………
………………… of …………………………… or failing them ………..………………
of ………………………..…… to be my/our proxy to vote for me/us at the
meeting
of Shareholders to be held on the …… day of …………..…………, 20…… and at
any
adjournment thereof.
(Any restrictions on voting to be
inserted here.)
Signed this …… day of …………..…………,
20……
……………………………
Shareholder
8.14. The following applies where Shares are jointly
owned:
(a)
if two or more persons hold Shares jointly each of
them may be present in person or by proxy at a Shareholder Meeting and may speak as a
Shareholder;
(b)
if only one (1) of the joint owners is present in
person or by proxy they may vote on behalf of all joint owners;
and
(c)
if two or more of the joint owners are present in
person or by proxy they must vote as one.
8.15. A
Shareholder shall be deemed to be present at a Shareholder Meeting
if they participate by telephone or other electronic means and all
Shareholders or their authorised representatives participating in
the Shareholder Meeting are able to hear each other.
8.16. A
Shareholder Meeting is duly constituted if, at the commencement of
the Shareholder Meeting, there are present in person or by proxy
not less than thirty percent (30%) of the votes of the Shares
entitled to vote on Resolutions of Shareholders to be considered at
the Shareholder Meeting. A quorum may comprise a single
Shareholder or proxy and then such person may pass a Resolution of
Shareholders and a certificate signed by such person accompanied
where such person be a proxy by a copy of the proxy instrument
shall constitute a valid Resolution of Shareholders.
8.17. If
majority of the Company's Shareholders present at a Shareholder
Meeting are represented by a single Co-Sponsor, a meeting will not
be considered quorate.
8.18. If
within two (2) hours from the time appointed for the Shareholder
Meeting a quorum is not present, the Shareholder Meeting, if
convened upon the requisition of Shareholders, shall be dissolved;
in any other case it shall stand adjourned to the next Business Day
in the jurisdiction in which the Shareholder Meeting was to have
been held at the same time and place or to such other time and
place as the Directors may determine, and if at the adjourned
Shareholder Meeting there are present within one (1) hour from the
time appointed for the Shareholder Meeting in person or by proxy
not less than one third (33.3%) of the votes of the Shares or each
class or series of Shares entitled to vote on the matters to be
considered by the Shareholder Meeting, those present shall
constitute a quorum but otherwise the Shareholder Meeting shall be
dissolved.
8.19. At
every Shareholder Meeting, the chair of the Board shall preside as
chair of the Shareholder Meeting. If there is no chair of the Board
or if that chair is not present at the Shareholder Meeting, the
Shareholders present shall choose one of their number to be the
chair. If the Shareholders are unable to choose a chair for any
reason, then the person representing the greatest number of voting
Shares present in person or by proxy at the Shareholder Meeting
shall preside as chair failing which the oldest individual
Shareholder or representative of a Shareholder present shall take
the chair.
8.20. The chair may, with the consent of the Shareholder Meeting,
adjourn any Shareholder 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 Shareholder
Meeting from which the adjournment took place.
8.21. At
any Shareholder Meeting the chair is responsible for deciding in
such manner as they consider appropriate whether any resolution
proposed has been carried or not and the result of their decision
shall be announced to the Shareholder Meeting and recorded in the
minutes of the Shareholder Meeting. If the chair has any doubt as
to the outcome of the vote on a proposed resolution, they shall
cause a poll to be taken of all votes cast upon such resolution. If
the chair fails to take a poll then any Shareholder present in
person or by proxy who disputes the announcement by the chair of
the result of any vote may immediately following such announcement
demand that a poll be taken and the chair shall cause a poll to be
taken. If a poll is taken at any Shareholder Meeting, the result
shall be announced to the Shareholder Meeting and recorded in the
minutes of the Shareholder Meeting.
8.22. Subject to the specific provisions contained in this
Regulation for the appointment of representatives of persons other
than individuals the right of any individual to speak for or
represent a Shareholder shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the
Directors may in good faith seek legal advice from any qualified
person and unless and until a court of competent jurisdiction shall
otherwise rule, the Directors may rely and act upon such advice
without incurring any liability to any Shareholder or the
Company.
8.23. Any person other than an individual which is a Shareholder may
by resolution of its Directors or other governing body authorise
such individual as it thinks fit to act as its representative at
any Shareholder Meeting or of any class of Shareholders, and the
individual so authorised shall be entitled to exercise the same
rights on behalf of the Shareholder which they represent as that
Shareholder could exercise if it were an individual.
8.24. The chair of any Shareholder Meeting at which a vote is cast
by proxy or on behalf of any person other than an individual may
call for a notarially certified copy of such proxy or authority
which shall be produced within seven (7) days of being so requested
or the votes cast by such proxy or on behalf of such person shall
be disregarded.
8.25. Directors may attend and speak at any Shareholder Meeting and
at any separate meeting of the holders of any class or series of
Shares.
8.26. An
action that may be taken by the Shareholders at a Shareholder
Meeting may also be taken by a resolution consented to in writing,
without the need for any notice, but if any Resolution of
Shareholders is adopted otherwise than by the unanimous written
consent of all Shareholders, an announcement including the material
terms of such written resolutions will be published by the Company
on its website as soon as reasonably practicable after they have
taken effect. Upon such publication, any Shareholder that has not
consented to such written resolutions will be deemed to have been
notified of their contents. The consent to any written resolutions
may be in the form of counterparts; each counterpart being signed
by one (1) or more Shareholders. If the consent is in one (1) or
more counterparts, and the counterparts bear different dates, then
the resolution shall take effect on the earliest date upon which
Shareholders holding a sufficient number of votes of Shares to
constitute a Resolution of Shareholders have consented to the
resolution by signed counterparts.
9
UNtraceable members
9.1.
Where any Shareholder is untraceable, the Company
may sell any of their Shares provided that:
(a)
no less than three (3) cheques for any sums
payable in cash to such Shareholder have remained uncashed for a
period of twelve (12) years from the date of issue of the
cheque;
(b)
the Company not having during that time or before
the expiry of the three (3) month period referred to in
Regulation 9.1(c) received any indication of the existence of the Shareholder or
person entitled to such shares by death, bankruptcy, or operation
of law; and
(c)
upon expiration of the twelve (12) year period, an
advertisement has been published in newspapers, giving notice of
the Company's
intention to sell those Shares, and a period of three (3) months or
such shorter period has elapsed since the date of such
advertisement.
9.2.
Where the Company sells the Shares of any
untraceable Shareholder, the net proceeds of any such sale shall be
held in the Company, and the net proceeds shall be accounted as a
debt due to that untraceable Shareholder for an amount equal to
such net proceeds.
10
DIRECTORS
10.1. The Directors shall be elected by Resolution of Shareholders
or, in the circumstances provided at Regulation 10.8, by Resolution of
Directors.
10.2. No
person shall be appointed as a Director or Alternate Director (as
defined in Regulation 13), or nominated as a reserve Director,
unless they have consented in writing to be a Director or Alternate
Director, or to be nominated as a reserve Director.
10.3. The minimum number of Directors shall be one (1) and there
shall be no maximum number of Directors. Any change in the number
of Directors shall be approved by a Resolution of
Shareholders.
10.4. Each Director holds office for the term, if any, fixed by the
Resolution of Shareholders appointing them, or until their earlier
death, resignation, or removal. If no term is fixed on the
appointment of a Director, the Director serves indefinitely until
their earlier death, resignation, or removal.
10.5. No
Director will be required to submit for re-election until the first
Annual General Meeting following the Effective Date.
10.6. A
Director may be removed from office:
(a)
with or without cause, by Resolution of
Shareholders passed at a Shareholder
Meeting called for the purpose of removing
the Director or for purposes including the removal of the Director
or by a written resolution passed by at least seventy-five percent
(75%) of the votes of the Shares entitled to vote; or
(b)
with cause, by Resolution of Directors passed at a
meeting of Directors called for the purpose of removing the
Director or for purposes including the removal of the
Director.
10.7. A
Director may resign their office by giving written notice of their
resignation to the Company and the resignation has effect from the
date the notice is received by the Company or from such later date
as may be specified in the notice. A Director shall resign
forthwith as a Director if they are, or become, disqualified from
acting as a Director under the Act.
10.8. The Directors may at any time appoint any person to be a
Director to fill a vacancy. Where the Directors appoint a person as
Director to fill a vacancy, the term shall expire on the earlier
of:
(a)
the end of the term of the Director being
replaced; or
(b)
the next Annual General Meeting.
10.9. A
vacancy in relation to Directors occurs if a Director dies or
otherwise ceases to hold office prior to the expiration of their
term of office.
10.10.
The Company shall keep a Register of Directors
containing:
(a)
the names and addresses of the persons who are
Directors or who have been nominated as reserve
Directors;
(b)
the date on which each person whose name is
entered in the register was appointed as a Director, or nominated
as a reserve Director;
(c)
the date on which each person named as a Director
ceased to be a Director;
(d)
the date on which the nomination of any person
nominated as a reserve Director ceased to have effect;
and
(e)
such other information as may be prescribed by the
Act.
10.11.
The Register of Directors may be kept in any such
form as the Directors may approve, but if it is in magnetic,
electronic, or other data storage form, the Company must be able to
produce legible evidence of its contents. Until a Resolution of
Directors determining otherwise is passed, the magnetic,
electronic, or other data storage shall be the original Register of
Directors.
10.12.
A Director is not required to hold a Share as a
qualification to office.
11
REmuneration of directors and adoption of incentive
schemes
11.1. The remuneration of Directors shall be set by Resolution of
Directors.
11.2. All the Directors are entitled to be reimbursed by the Company
for travel, hotel, and other expenses incurred by them in the
course of their Directors' duties relating to the
Company.
11.3. Any Incentive Scheme adopted by the Company after the
Effective Date must be approved by a Resolution of
Directors.
12
POWERS OF DIRECTORS
12.1. The business and affairs of the Company shall be managed by,
or under the direction or supervision of, the Directors. The
Directors have all the powers necessary for managing, and for
directing and supervising, the business and affairs of the Company.
The Directors may exercise all such powers of the Company as are
not by the Act or by the Memorandum or the Articles required to be
exercised by the Shareholders.
12.2. Each Director shall exercise their powers for a proper purpose
and shall not act or agree to the Company acting in a manner that
contravenes the Memorandum, the Articles, or the Act. Each
Director, in exercising their powers or performing their duties,
shall act honestly and in good faith in what the Director believes
to be the best interests of the Company.
12.3. If
the Company is the wholly owned subsidiary of a parent, a Director
may, when exercising powers or performing duties as a Director, act
in a manner which they believe is in the best interests of the
parent even though it may not be in the best interests of the
Company.
12.4. Any Director which is a body corporate may appoint any
individual as its duly authorised representative for the purpose of
representing it at meetings of the Directors, with respect to the
signing of consents or otherwise.
12.5. The continuing Directors may act notwithstanding any vacancy
in their body.
12.6. The Directors may by Resolution of Directors exercise all the
powers of the Company to incur indebtedness, liabilities, or
obligations and to secure indebtedness, liabilities, or obligations
whether of the Company or of any third party.
12.7. All cheques, promissory notes, drafts, bills of exchange, and
other negotiable instruments and all receipts for moneys paid to
the Company shall be signed, drawn, accepted, endorsed, or
otherwise executed, as the case may be, in such manner as shall
from time to time be determined by Resolution of
Directors.
13
PROCEEDINGS OF DIRECTORS
13.1. Any one (1) Director may call a meeting of the Directors by
sending a written notice to each other Director.
13.2. The Directors or any committee thereof may meet at such times
and in such manner and places within or outside the British Virgin
Islands as the Directors may determine to be necessary or
desirable.
13.3. A
Director is deemed to be present at a meeting of Directors if they
participate by telephone or other electronic means and all
Directors participating in the meeting are able to hear each
other.
13.4. A
Director shall be given not less than three (3) days' notice of
meetings of Directors, but a meeting of Directors held without
three (3) days' notice having been given to all Directors shall be
valid if all the Directors entitled to vote at the meeting who do
not attend waive notice of the meeting, and for this purpose the
presence of a Director at a meeting shall constitute waiver by that
Director. The inadvertent failure to give notice of a meeting to a
Director, or the fact that a Director has not received the notice,
does not invalidate the meeting.
13.5. A
Director (the Appointing Director) may appoint any
other Director or any other eligible person as their alternate to
exercise the Appointing Director's powers and carry out the Appointing
Director's
responsibilities in relation to the taking of decisions by the
Directors in the absence of the Appointing Director (the
Alternate
Director).
13.6. The appointment and termination of an Alternate Director must
be in writing, and written notice of the appointment and
termination must be given by the Appointing Director to the Company
as soon as reasonably practicable.
13.7. An
Alternate Director has the same rights as the Appointing Director
in relation to any Directors' meeting and any written resolution
circulated for written consent. An Alternate Director has no power
to appoint a further alternate, whether of the Appointing Director
or of the Alternate Director, and the alternate does not act as an
agent of or for the Appointing Director.
13.8. The Appointing Director may, at any time, voluntarily
terminate the Alternate Director's appointment. The voluntary
termination of the appointment of an alternate shall take effect
from the time when written notice of the termination is given to
the Company. The rights of an alternate shall automatically
terminate if the Appointing Director dies or otherwise ceases to
hold office.
13.9. A
meeting of Directors is duly constituted for all purposes if at the
commencement of the meeting there are present in person or by
alternate not less than one-half (50%) of the total number of
Directors.
13.10.
If the Company has only one (1) Director the
provisions herein contained for meetings of Directors do not apply
and such sole Director has full power to represent and act for the
Company in all matters as are not by the Act, the Memorandum, or
the Articles required to be exercised by the Shareholders. In lieu
of minutes of a meeting the sole Director shall record in writing
and sign a note or memorandum of all matters requiring a Resolution
of Directors. Such a note or memorandum constitutes sufficient
evidence of such resolution for all purposes.
13.11.
The Directors may appoint a Director as chair of
the Board. At meetings of Directors at which the chair of the Board
is present, they shall preside as chair of the meeting. If there is
no chair of the Board or if the chair of the Board is not present,
the Directors present shall choose one of their number to be chair
of the meeting.
13.12.
An action that may be taken by the Directors or a
committee of Directors at a meeting may also be taken by a
Resolution of Directors or a resolution of a committee of
Directors, without the need for any notice. The consent may be in
the form of counterparts each counterpart being signed by one (1)
or more Directors. If the consent is in one (1) or more
counterparts, and the counterparts bear different dates, then the
resolution shall take effect on the date upon which the last
Director has consented to the resolution by signed
counterparts.
13.13.
Directors of the Company bearing affiliation with
any single Co-Sponsor may not constitute a majority of the
Board.
13.14.
If the number of votes for and against a
resolution proposed at a meeting of Directors are equal, the
resolution will be deemed to have been duly approved by the
Directors if a majority of the Independent Non-Executive Directors
vote in favour. If there is not a sufficient number of Independent
Non-Executive Directors present, the meeting must be reconvened
with all Independent Non-Executive Directors present.
14
COMMITTEES
14.1. The Directors may, by Resolution of Directors, designate one
(1) or more committees, each consisting of one (1) or more
Directors, and delegate one (1) or more of their powers, including
the power to affix the Seal, to the committee.
14.2. The Directors have no power to delegate to a committee of
Directors any of the Proscribed Powers.
14.3. A
committee of Directors, where authorised by the Resolution of
Directors appointing such committee or by a subsequent Resolution
of Directors, may appoint a sub-committee and delegate powers
exercisable by the committee to the sub-committee.
14.4. The meetings and proceedings of each committee of Directors
consisting of two (2) or more Directors shall be governed by the
provisions of these Articles regulating the proceedings of
Directors with any necessary changes so far as the same are not
superseded by any provisions in the Resolution of Directors
establishing the committee.
14.5. Where the Directors delegate their powers to a committee of
Directors they remain responsible for the exercise of that power by
the committee, unless they believed on reasonable grounds at all
times before the exercise of the power that the committee would
exercise the power in conformity with the duties imposed on
Directors under the Act.
15
OFFICERS AND AGENTS
15.1. The Company may by Resolution of Directors appoint officers of
the Company at such times as may be considered necessary or
expedient. The officers shall perform such duties as are prescribed
at the time of their appointment subject to any modification in
such duties as may be prescribed thereafter by Resolution of
Directors.
15.2. The emoluments of all officers shall be fixed by Resolution of
Directors.
15.3. The officers of the Company shall hold office until their
successors are duly appointed, but any officer elected or appointed
by the Directors may be removed at any time, with or without cause,
by Resolution of Directors. Any vacancy occurring in any office of
the Company may be filled by Resolution of Directors.
15.4. The Directors may, by Resolution of Directors, appoint any
person, including a person who is a Director, to be an agent of the
Company.
15.5. An
agent of the Company shall have such powers and authority of the
Directors, including the power and authority to affix the Seal, as
are set forth in the Articles or in the Resolution of Directors
appointing the agent, except that no agent has any power or
authority with respect to the following:
(a)
the Proscribed Powers;
(b)
to change the registered office or
agent;
(c)
to fix emoluments of Directors; or
(d)
to authorise the Company to continue as a company
incorporated under the laws of a jurisdiction outside the British
Virgin Islands.
15.6. The Resolution of Directors appointing an agent may authorise
the agent to appoint one (1) or more substitutes or delegates to
exercise some or all of the powers conferred on the agent by the
Company.
15.7. The Directors may remove an agent appointed by the Company and
may revoke or vary a power conferred on them.
16
Financial Year
16.1. Unless the Directors otherwise prescribe, the financial year
of the Company shall end on 31 December in each year.
17
Mergers and consolidations
17.1. The Company shall have the power to merge or consolidate with
one (1) or more other constituent companies upon such terms as the
Directors may determine by a Resolution of the Directors subject as
may be permitted by the Act.
18
CONFLICT OF INTERESTS
18.1. A
Director shall, forthwith after becoming aware of the fact that
they are interested in a transaction entered into or to be entered
into by the Company, disclose the interest to all other
Directors.
18.2. For the purposes of Regulation 18.1, a disclosure to all other Directors to the effect that a
Director is a member, director, or officer of another named entity
or has a fiduciary relationship with respect to the entity or a
named individual and is to be regarded as interested in any
transaction which may, after the date of the entry into the
transaction or disclosure of the interest, be entered into with
that entity or individual, is a sufficient disclosure of interest
in relation to that transaction.
18.3. Subject to any rules or regulations of the London Stock
Exchange or any laws or regulations governing companies listed on
the London Stock Exchange, a Director who is interested in a
transaction entered into or to be entered into by the Company
may:
(a)
vote on a matter relating to the
transaction;
(b)
attend a meeting of Directors, or meeting of a
committee of Directors, at which a matter relating to the
transaction arises and be included among the Directors present at
the relevant meeting for the purposes of a quorum; and
(c)
sign a document on behalf of the Company, or do
any other thing in their capacity as a Director, that relates to
the transaction,
and, subject to compliance with the
Act, shall not by reason of their office be accountable to the
Company for any benefit which they derive from such transaction and
no such transaction shall be liable to be avoided on the grounds of
any such interest or benefit.
19
INDEMNIFICATION
19.1. Subject to the limitations hereinafter provided, the Company
shall indemnify against all expenses, including legal fees, and
against all judgments, fines, and amounts paid in settlement and
reasonably incurred in connection with legal, administrative, or
investigative proceedings any person who:
(a)
is or was a party or is threatened to be made a
party to any threatened, pending, or completed proceedings, whether
civil, criminal, administrative, or investigative, by reason of the
fact that the person is or was a Director; or
(b)
is or was, at the request of the Company, serving
as a director of, or in any other capacity is or was acting for,
another body corporate or a partnership, joint venture, trust, or
other enterprise.
19.2. The indemnity in Regulation 19.1 only
applies if the person acted honestly and in good faith with a view
to the best interests of the Company and, in the case of criminal
proceedings, the person had no reasonable cause to believe that
their conduct was unlawful.
19.3. For the purposes of Regulation 19.2
and without limitation, a Director acts in the
best interests of the Company if they act in the best interests of
the Company's
parent in the circumstances specified in Regulation
12.3.
19.4. The decision of the Directors as to whether the person acted
honestly and in good faith and with a view to the best interests of
the Company and as to whether the person had no reasonable cause to
believe that their conduct was unlawful is, in the absence of
fraud, sufficient for the purposes of the Articles, unless a
question of law is involved.
19.5. The termination of any proceedings by any judgment, order,
settlement, conviction, or the entering of a nolle prosequi does not, by itself,
create a presumption that the person did not act honestly and in
good faith and with a view to the best interests of the Company or
that the person had reasonable cause to believe that their conduct
was unlawful.
19.6. Expenses, including legal fees, incurred by a Director in
defending any legal, administrative, or investigative proceedings
may be paid by the Company in advance of the final disposition of
such proceedings upon receipt of an undertaking by or on behalf of
the Director to repay the amount if it shall ultimately be
determined that the Director is not entitled to be indemnified by
the Company in accordance with Regulation 19.1.
19.7. Expenses, including legal fees, incurred by a former Director
in defending any legal, administrative or investigative proceedings
may be paid by the Company in advance of the final disposition of
such proceedings upon receipt of an undertaking by or on behalf of
the former Director to repay the amount if it shall ultimately be
determined that the former Director is not entitled to be
indemnified by the Company in accordance with Regulation
19.1
and upon such terms and conditions, if any, as the
Company deems appropriate.
19.8. The indemnification and advancement of expenses provided by,
or granted pursuant to, this section is not exclusive of any other
rights to which the person seeking indemnification or advancement
of expenses may be entitled under any agreement, Resolution of
Shareholders, resolution of disinterested Directors or otherwise,
both as to acting in the person's official capacity and as to acting
in another capacity while serving as a Director.
19.9. If
a person referred to in Regulation 19.1
has been successful in defence of any proceedings
referred to in Regulation 19.1, the person
is entitled to be indemnified against all expenses, including legal
fees, and against all judgments, fines and amounts paid in
settlement and reasonably incurred by the person in connection with
the proceedings.
19.10.
The Company may purchase and maintain insurance in
relation to any person who is or was a Director, officer, or
liquidator of the Company, or who at the request of the Company is
or was serving as a director, officer, or liquidator of, or in any
other capacity is or was acting for, another body corporate or a
partnership, joint venture, trust, or other enterprise, against any
liability asserted against the person and incurred by the person in
that capacity, whether or not the Company has or would have had the
power to indemnify the person against the liability as provided in
the Articles.
20
Corporate RECORDS
20.1. The Company shall keep the following documents at the office
of the Registered Agent:
(a)
the Memorandum and the Articles;
(b)
the Register of
Members, or a copy of the
Register of Members;
(c)
the Register of Directors, or a copy of the
Register of Directors; and
(d)
copies of all notices and other documents filed by
the Company with the Registrar in the previous ten (10)
years.
20.2. Until the Directors determine otherwise by Resolution of
Directors, the Company shall keep the original Register of Members
and original Register of Directors at the office of the Registered
Agent.
20.3. The Company shall keep the following records at the office of
the Registered Agent or at such other place or places, within or
outside the British Virgin Islands, as the Directors may
determine:
(a)
minutes of meetings and Resolutions of Directors
and committees of Directors; and
(b)
minutes of meetings and Resolutions of
Shareholders and classes of Shareholders.
20.4. Where any original records referred to in this Regulation are
maintained other than at the office of the Registered Agent, and
the place at which the original records is changed, the Company
shall provide the Registered Agent with the physical address of the
new location of the records of the Company within fourteen (14)
days of the change of location.
20.5. The records kept by the Company under this Regulation shall be
in written form or either wholly or partly as electronic records
complying with the requirements of the Electronic Transactions Act
2001 as from time to time amended or re-enacted.
21
SEAL
21.1. The Company shall have a Seal an impression of which shall be
kept at the office of the Registered
Agent. The Company may have more than
one (1) Seal and
references herein to the Seal shall be references to every Seal
which shall have been duly adopted by Resolution of
Directors. The
Directors shall provide
for the safe custody of the Seal and for an imprint thereof to be
kept at the registered office. Except as otherwise expressly
provided herein the Seal when affixed to any written instrument
shall be witnessed and attested to by the signature of any
one (1) Director or
other person so authorised from time to time by Resolution of
Directors. Such authorisation may be before or after the Seal is
affixed, may be general or specific and may refer to any number of
sealings. The Directors may provide for a facsimile of the Seal and of the signature
of any Director or
authorised person which may be reproduced by printing or other
means on any instrument and it shall have the same force and
validity as if the Seal had been affixed to such instrument and the
same had been attested to as hereinbefore described.
22
DISTRIBUTIONS BY WAY OF DIVIDEND
22.1. The Directors may, by Resolution of Directors, authorise a
distribution by way of dividend at a time and of an amount they
think fit if they are satisfied, on reasonable grounds, that,
immediately after the distribution, the value of the
Company's assets
will exceed its liabilities and the Company will be able to pay its
debts as they fall due.
22.2. Dividends may be paid in money, shares, or other
property.
22.3. The Company may, by Resolution of Directors, from time to time
pay to the Shareholders such interim dividends as appear to the
Directors to be justified by the profits of the Company, provided
always that they are satisfied, on reasonable grounds, that,
immediately after the distribution, the value of the
Company's assets
will exceed its liabilities and the Company will be able to pay its
debts as and when they fall due.
22.4. Notice of any dividend that may have been declared shall be
given to each Shareholder as specified in Regulation
24
and all dividends unclaimed for three (3) years
after having been declared may be forfeited by Resolution of
Directors for the benefit of the Company.
22.5. No
dividend shall bear interest as against the Company and no dividend
shall be paid on treasury shares.
23
ACCOUNTS AND AUDIT
23.1. The Company shall keep records and underlying documentation
that are sufficient to show and explain the
Company's
transactions and that will, at any time, enable the financial
position of the Company to be determined with reasonable
accuracy.
23.2. The records and underlying documentation of the Company shall
be kept at the office of the Registered Agent or at such other
place or places, within or outside the British Virgin Islands, as
the Directors may determine and if the records and underlying
documentation are kept in a location other than the office of the
Registered Agent, the Company shall provide the Registered Agent
with a written record of:
(a)
the physical address of the place at which the
records and underlying documentation are kept; and
(b)
the name of the person who maintains and controls
the Company's
records and underlying documentation.
23.3. If
the location at which the records and underlying documentation are
kept or the name of the person who maintains and controls the
records and underlying documentation changes, the Company shall,
within fourteen (14) days of the change, provide the Registered
Agent with:
(a)
the physical address of the new location at which
the records and underlying documentation are kept; and
(b)
the name of the new person who maintains and
controls the Company's records and underlying documentation.
23.4. The Company may by Resolution of Shareholders call for the
Directors to prepare periodically and make available a profit and
loss account and a balance sheet. The profit and loss account
and balance sheet shall be drawn up so as to give respectively a
true and fair view of the profit and loss of the Company for a
financial period and a true and fair view of the assets and
liabilities of the Company as at the end of a financial
period.
23.5. The Company may by Resolution of Shareholders call for the
accounts to be examined by auditors.
23.6. The first auditors shall be appointed by Resolution of
Directors; subsequent auditors shall be appointed by Resolution of
Shareholders or by Resolution of Directors.
23.7. The auditors may be Shareholders, but no Director or other
officer shall be eligible to be an auditor of the Company during
their continuance in office.
23.8. The remuneration of the auditors of the Company may be fixed
by Resolution of Directors.
23.9. The auditors shall examine each profit and loss account and
balance sheet required to be laid before a meeting of the
Shareholders or otherwise given to Shareholders and shall state in
a written report whether or not:
(a)
in their opinion the profit and loss account and
balance sheet give a true and fair view respectively of the profit
and loss for the period covered by the accounts, and of the assets
and liabilities of the Company at the end of that period;
and
(b)
all the information and explanations required by
the auditors have been obtained.
23.10.
The report of the auditors shall be annexed to the
accounts and shall be read at the Shareholder Meeting at which the
accounts are laid before the Company or shall be otherwise given to
the Shareholders.
23.11.
Every auditor of the Company shall have a right of
access at all times to the books of account and vouchers of the
Company and shall be entitled to require from the Directors and
officers of the Company such information and explanations as they
think necessary for the performance of the duties of the
auditors.
23.12.
The auditors of the Company shall be entitled to
receive notice of, and to attend, any meetings of Shareholders at
which the Company's
profit and loss account and balance sheet are to be
presented.
23.13.
The Directors shall establish and maintain an
audit committee (Audit
Committee) as a committee of the Directors and shall adopt a
formal written Audit Committee charter and review and assess the
adequacy of the formal written charter on an annual basis. The
composition and responsibilities of the Audit Committee shall
comply with the rules and regulations of the FCA and the London
Stock Exchange. Once formed, the Audit Committee shall meet at
least once every financial quarter, or more frequently as the
circumstances dictate.
24
NOTICES
24.1. Any notice, information, or written statement to be given by
the Company to Shareholders shall be in writing and may be given by
personal service, mail, courier, or email to such
Shareholder's
address as shown in the Register of Members or to such
Shareholder's email address as notified by the Shareholder to the
Company in writing from time to time.
24.2. Any summons, notice, order, document, process, information, or
written statement to be served on the Company may be served by
leaving it, or by sending it by registered mail addressed to the
Company, at its registered office, or by leaving it with, or by
sending it by registered mail addressed to the Company at the
offices of the Registered Agent.
24.3. Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, prepaying and posting
a letter containing notice, and shall be deemed to be received on
the fifth (5th) Business Day following the day on which
the notice was posted. Where a notice is sent by email,
notice shall be deemed to be effected by transmitting the email to
the address or number provided by the intended recipient and
service of the notice shall be deemed to have been received on the
same day that it was transmitted.
25
VOLUNTARY LIQUIDATION
25.1.
Subject to the Act, the Company may by
Resolution of Shareholders or by Resolution of Directors appoint an
eligible individual as voluntary liquidator alone or jointly with
one (1) or more
other voluntary liquidators.
26.
CONTINUATION
26.1. Subject to the Act, the Company may by Resolution of Directors
continue as a company incorporated under the laws of a jurisdiction
outside the British Virgin Islands in the manner provided under
those laws.