ARTICLES OF ASSOCIATION
- In these Articles, unless the context otherwise requires:
- “the Act” means the Companies Act, 1995;
- “the Register” means the register of members of the Company;
- “the Schedule” means the First Schedule to the Act;
- words or expressions contained in these Articles bear the same meaning as in the Act as in force at the date at which these Articles are registered.
Non-applicability of the First Schedule
- The regulations contained in Part 1 of the Schedule shall not apply to the Company except as otherwise expressly provided in these Articles.
Share Capital and Share Rights
- Issues of new shares and securities which are convertible into shares or which carry the right to subscribe for shares shall be made by ordinary resolution of the Company in general meeting. The Board of Directors may be authorised by an ordinary resolution of the Company in general meeting to issue any shares and securities which are convertible into shares or which carry the right to subscribe for shares in the Company up to the limit of the authorised share capital of the Company. Such authorisation shall be valid for a maximum period of five (5) years from the date of the resolution and may be renewed for further periods of five (5) years each.
- Subject to the relevant provisions of the Act and these Articles, allotments of new shares and securities which are convertible into shares or which carry the right to subscribe for shares in the Company for consideration in cash shall be offered on a pre-emptive basis to shareholders in the Company in proportion to the share capital held by them. No such new shares and securities which are convertible into shares or which carry the right to subscribe for shares shall be offered on a pre-emptive basis to the Company itself, notwithstanding any other provision of the Act empowering the Company to hold its own shares. The Board of Directors may restrict or withdraw the right of pre-emption on any issue made by the Board of Directors in accordance with an authorisation granted under Article 3 hereof.
- The Company is authorised to acquire other than by subscription any of its fully paid up shares, subject to all the relevant provisions of the Act.
- Without prejudice to any special rights conferred on the holders of any existing shares or class of shares, any share in the Company may be issued with such preferred, deferred or other special rights or such restriction, whether in regard to dividend, voting, return of capital or otherwise as the Company may from time to time by extraordinary resolution determine.
- Subject to the provisions of article 115 of the Act any preference shares may, with the sanction of an ordinary resolution of the Company or the Board of Directors, be issued on the terms that they are, or at the option of the Company are liable to be redeemed on such terms and in such manner as the Company or the Board of Directors before the issue of the shares may determine. The Board of Directors may fix the date on or by which, or dates between which, redeemable preference shares are to be or may be redeemed, provided that the date or dates are fixed before the shares are issued.
- The rights attached to shares of a class may be varied and the shares of a class may be converted into another class only if the variation or the conversion:
- is made in accordance with the terms of issue of those shares; or
- is approved by an extraordinary resolution of the Company and by the consent in writing of the holders of three-fourths of the issued shares of that class and of the holders of three-fourths of the issued shares of any other class affected thereby.
- The rights attached to different classes of shares shall be regulated by clause 5 of the Memorandum of Association of the Company.
- The Company may exercise the power of paying commissions or of making discounts or allowances provided it complies with the requirements of article 113 of the Act. Such commission may be satisfied by the payment of cash or the allotment of fully or partly paid shares or partly in one way and partly in the other.
- Where a shareholder is a minor, bankrupt, interdicted or incapacitated his rights as a shareholder in the Company shall vest in and be exercised by his tutor or curator or other legal representative.
- Where a share is held jointly by several persons, the name of only one such person shall be entered in the register of members. Such person shall be elected by the joint holders or, unless and until such an election is made, be determined by the Board of Directors and shall for all intents and purposes be deemed, vis-à-vis the Company, to be the registered holder of the share so held.
- Where a share is subject to usufruct the name of the usufructuary shall be entered in the register of members and the usufructuary shall, for all intents and purposes be deemed, vis-à-vis the Company, to be the registered holder of the share so held.
- Regulations 6 to 11 of the Schedule relating to calls on shares shall apply to the Company.
Transfer of shares inter vivos
- All shares in the company are freely transferable and transfers of shares may be effected by transfer in writing in any usual or common form or in any other form acceptable to the Directors.
- The instrument of transfer shall be signed by or on behalf of the transferor and (except in the case of fully paid up shares) by or on behalf of the transferee. The transferor shall remain the holder of the shares concerned until the name of the transferee is entered in the Register in respect of the relevant transfer. All instruments of transfer which are registered may be retained by the Company.
- Where some only of the shares comprised in a share certificate are transferred, the old certificate shall be cancelled and a new certificate for the balance of such shares shall be issued.
- The Board of Directors may decline to recognise any instrument of transfer unless:-
- the instrument of transfer is accompanied by the certificate, if any, of the shares to which it relates, and such other evidence as the Board of Directors may reasonably require to show the right of the transferor to make the transfer;
- the instrument of transfer is in respect of only one class of shares; and
- the transfer complies with the relevant requirements of Maltese law.
- The registration of transfers may be suspended at such times and for such periods as the Board of Directors may from time to time determine, provided always that such registration shall not be suspended for more than thirty (30) days in any year.
Forfeiture or surrender of shares
- If a member fails to pay any call or instalment of a call on the day appointed for payment thereof, the directors may, at any time thereafter during such time as any part of the call or instalment remains unpaid, require payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued, by means of a notice which shall also name a further day (not earlier than the expiration of fourteen 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 state that in the event of non-payment, at or before the time appointed, the shares in respect of which the call was made will be liable to be forfeited.
- If the requirements specified in 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, or otherwise be surrendered in favour of the Company by the member to whom the said notice is addressed, if the directors of the Company accept such surrender.
- A forfeited or a surrendered share may be sold or otherwise disposed of on such terms and in such manner as the directors think fit, and the Company may receive the consideration, if any, 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, who shall thereupon be registered as the holder of the share. At any time before a sale or disposition the forfeiture or surrender may be cancelled on such terms as the directors think fit.
- A person whose shares have been forfeited or who has surrendered his shares to the Company, shall cease to be a member in respect of the forfeited or surrendered shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which, at the date of the forfeiture or surrender, were payable by him to the Company in respect of the shares; but his liability shall cease if and when the Company shall have received payment in full of all such moneys in respect of the shares.
Conversion of shares into stock
- The Company may by ordinary resolution convert any paid-up shares into stock, and re-convert any stock into paid up shares of any denomination. Such of the regulations of the Company as are applicable to paid up shares shall apply to stock, and the words “share” and “shareholder” therein shall include “stock” and “stockholder”.
- The holders of stock may transfer the same, or any part thereof, in the same manner and subject to the same regulations, as and subject to which the shares from which the stock arose might previously to conversion have been transferred, or as near thereto as circumstances permit; and the directors may from time to time fix the minimum amount of stock transferable but so that such minimum shall not exceed the nominal amount of the shares from which the stock arose.
- The holders of stock shall, according to the amount of stock held by them, have the same rights, privileges and advantages as regards dividends, voting at meetings of the Company and other matters as if they held the shares from which the stock arose, but no such privilege or advantage (except participation in the dividends and profits of the Company and in the assets on winding up) shall be conferred by any amount of stock which would not, if existing in shares, have conferred that privilege or advantage.
Dematerialisation of securities
- Notwithstanding any other clause of these articles, for as long as any of the securities issued by the Company shall be and remain dematerialised under the Financial Markets Act (Chapter 345 of the Laws of Malta):
- terms and conditions relating to such securities, including without prejudice to the generality of the foregoing, their issuance, transfer, exchange, redemption and/or cancellation, shall be governed in accordance with the applicable rules and procedures set out by the relevant central securities depository providing dematerialisation and any other provisions of these articles shall apply only to the extent that they are not inconsistent with such rules and procedures; and
- any amendment, variation or deletion of this Article shall be subject to the express written approval of the relevant central securities depository providing dematerialisation obtained prior to submission to the Company convened in extraordinary general meeting.
- Subject to the provisions of the Act the annual general meetings shall be held at such time and place as the Board of Directors may appoint, including outside Malta.
- The Board of Directors may, whenever they think fit, convene an extraordinary general meeting. Extraordinary general meetings may also be convened on requisition or, in default, by requisitionists, as provided in article 129 of the Act.
- A general meeting of the Company shall be called by giving at least fourteen (14) clear days’ notice in writing to every member of the Company. The notice shall specify the place, day and hour of the meeting and the general nature of the business:
- Provided that a meeting of the Company shall, notwithstanding that it is called by shorter notice be deemed to have been duly called if it is so agreed to by all the members entitled to attend and vote at that meeting.
- The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.
- No business shall be transacted at any general meeting other than that stated in the notice convening it and unless a quorum of members is present at the time the meeting proceeds to business.
- Save as herein otherwise provided a member or members holding at least seventyfive percent (75%) of the issued share capital carrying voting rights shall constitute a quorum.
- If within an hour from the time appointed for a meeting a quorum is not present the meeting shall be adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within an hour from the time appointed for the meeting, a member or members in person or by proxy holding at least twenty-five percent (25%) of the issued share capital carrying voting rights shall constitute a quorum.
- The chairman of the Company shall preside as Chairman of the Meeting in every general meeting and, if there is no chairman of the Company or if the chairman of the Company is not present within fifteen (15) minutes after the appointed time, the Chairman of the Meeting shall be elected by the directors present.
- Any decision of the general meeting for which an extraordinary resolution is not required by these regulations or by the Act shall be validly taken if approved by an ordinary resolution.
- An ordinary resolution of the Company shall be validly passed if approved in a general meeting by a member or members having the right to attend and vote at that meeting and holding in the aggregate more than fifty per cent (50%) in nominal value of the shares represented and entitled to vote at the meeting.
An extraordinary resolution of the Company shall be validly passed if:
a.it has been taken at a general meeting of which notice specifying the intention to propose that resolution as an extraordinary resolution and the principal purpose thereof has been duly given; and
b. it has been passed by (i) a member or members having the right to attend and vote at the meeting holding in the aggregate not less than seventy-five per cent (75%) in nominal value of the shares represented and entitled to vote at the meeting, and (ii) a member or members holding in the aggregate at least fifty-one per cent (51%) in nominal value of all the shares entitled to vote at the meeting.
If one of the aforesaid majorities is not obtained, the provisions of Article 135 (1) will apply.
- Any member entitled to attend and vote at a general meeting of the Company may appoint another person as his proxy to attend and vote in his stead and a proxy so appointed shall have the same right as that member to speak at the meeting and to demand a poll.
- The appointment of a proxy shall be in writing and shall be registered at the Company’s office before the time for holding the meeting.
Meetings of Classes of Shareholders
- The regulations applicable to a general meeting of the Company shall apply mutatis mutandis to a separate general meeting of a class of shareholders.
- The directors shall be appointed by an ordinary resolution of the Company in general meeting. The Company may by ordinary resolution taken at the time of his appointment or at any later date determine the period for which a director shall hold office. Subject to the provisions of article 140 of the Act, a director shall hold office, unless he dies or tenders his resignation at an earlier date, until the expiration of the period determined as aforesaid but shall thereafter be eligible for re-appointment.
- The directors shall appoint from amongst their number the Chairman of the Board who shall also be the Chairman of the General Meeting. The directors shall exercise their powers subject to these regulations, to the provisions of the Act, and to the resolutions of the Company in general meetings; but no resolution taken by the Company in general meeting shall invalidate any prior act of the directors which would have been valid if that resolution had not been taken. Save as aforesaid, the Board of Directors shall have the power:
- a. -> to borrow or raise money or secure the payment of money and in conjunction with and independently therefrom to charge or hypothecate the property of the Company or any part thereof for any debt, liability or obligation of the Company, and this without any limitation whatsoever;
- b. -> to do all such other matters on behalf of the Company as are not by these regulations or by the Act reserved to the general meeting.
- The directors may meet together for the despatch of business, adjourn and otherwise regulate their meetings, as they think fit. Questions arising at any meeting shall be decided by a majority of votes. Each director shall have one vote and in case of equality of votes the Chairman shall have a second or casting vote. A director shall be deemed to be present at a meeting of the Board if he participates by telephone or other electronic means and all directors participating in the meeting are able to hear each other.
- The quorum necessary for the transaction of the business of the Board of Directors shall be at least two directors. If a quorum is not present within half an hour from the appointed time the meeting shall be dissolved.
- Meetings of the Board of Directors shall be convened by the Chairman or by the Company secretary at the request of any director.
- Saving the provisions of the preceding clause in any meeting where the Chairman is not present the directors present shall appoint one of their number to be chairman
- of that meeting and the person so appointed shall with respect only to that meeting have the same functions. rights and obligations of the Chairman of the Board.
- 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 the regulations of the Company as the necessary quorum of directors the continuing directors or director 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.
- A resolution in writing, signed by all the directors of the Company shall be as valid and effective as if it had been passed at a meeting of the Board of Directors duly convened and held.
- Subject to the provisions of articles 143, 144 and 145 of the Act, no director shall be disqualified by his position as a director from entering into any agreement with the Company, and a director may vote and be taken into account for the purpose of forming a quorum, in respect of any contract or arrangement in which he may be in any way interested and may retain for his own use and benefit all profits and advantages accruing therefrom.
- The Board of Directors shall have power to appoint any person to be the attorney of the Company for such purpose and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Board of Directors under these regulations) as they may deem appropriate and may also authorise any such attorney to delegate all or any of the powers, authorities and discretion vested in him.
- The Board of Directors may from time to time appoint a managing director or a director or directors holding any other executive office or offices from amongst themselves delegating to him or them any of the powers exercisable by them either collaterally with or to the exclusion of their own powers. Subject to the provisions of the next following clause, any such appointment shall be valid for such period and subject to such terms and conditions as the Board may impose. Any such appointment shall be automatically determined if the person so appointed ceases for any reason to be a director.
- The provisions of the foregoing two clauses shall be subject to the provisions contained in the Memorandum of Association of the Company relating to legal and judicial representation of the Company.
- No remuneration shall be payable to the directors, including directors holding an executive office, unless and to the extent approved by the Company in general meeting. The directors shall, however, be entitled to a reimbursement of all travelling, hotel and other expenses properly incurred by them in attending and returning from meetings of the Board of Directors or general meetings of the Company or in connection with the business of the Company.
- Without prejudice to the provisions of the Act regulating the appointment and functions of the Company secretary, the appointment or replacement of the Company secretary and the conditions of holding office shall be determined by the Board of Directors.
- The Company secretary shall be responsible for keeping:-
- a. -> the minute book of general meetings of the Company;
- b. -> the minute book of meetings of the Board of Directors;
- c. -> the register of members;
- d. -> the register of debentures; and
- e. -> such other registers and records as the Company secretary may be requested to keep by the Board of Directors.
- The Company Secretary shall, moreover:-
- a. -> ensure that proper notices are given of all meetings;
- b. -> ensure that all returns and other documents of the Company are prepared and delivered in accordance with the requirements of the Act.
- The Board of Directors may declare dividends.
- The Board of Directors may from time to time pay to the members of the Company such interim dividends as may appear to the Board of Directors to be justified by the profits of the Company.
- Subject to the rights of persons, if any, entitled to shares with special rights as to dividends, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect whereof the dividend is paid, but no amount paid or credited as paid on a share in advance of calls shall be treated for the purposes of this regulation as paid on the share. All dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid; but if any share is issued on terms providing that it shall rank for dividend as from a particular date such share shall rank for dividend accordingly.
- The Board of Directors may deduct from any dividend payable to any member all sums of money presently payable by him to the Company on account of calls or otherwise in relation to the shares of the Company.
- No dividend shall bear interest against the Company.
Capitalisation of Profits
- The provisions on capitalization of profits contained in regulation 80 in Part I of the Schedule shall apply to the Company.
- Every director, managing director, agent, auditor or secretary and in general any officer for the time being of the Company shall be indemnified out of the assets of the Company against and/or exempted by the Company from all costs (including any costs payable in advance), charges, losses, expenses (including any expenses payable in advance) and liability incurred by him in the actual or purported exercise of his powers and/or otherwise in relation to or in connection with his duties, powers or office including (without prejudice to the generality of the foregoing) any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him in his capacity as aforesaid and in which judgement is given in his favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he is acquitted or which are withdrawn.
Authentication of Documents
- Any document or proceeding requiring authentication by the Company may be signed by a director or by the Company secretary or by any person authorised by resolution of the directors from time to time.
- A notice required to be given by the Company to any person in terms of these regulations or of the Act shall be deemed to have been validly given if it is delivered personally to that person or sent to him by post in an envelope addressed to the last known address of that person or sent by fax to the last known fax number of that person or sent by email to the last known email address of that person. Furthermore, such notice shall be deemed to have been validly given if it is published on its website and in at least two (2) daily newspapers with national circulation in Malta.
- A notice sent by post shall be deemed to have been delivered three days after it is posted in the case of delivery to an address in Malta and ten days after it is posted in the case of delivery to an address outside Malta. A notice sent by fax shall be deemed to have been delivered upon a positive confirmation that the fax has been received. A notice sent by email shall be deemed to have been delivered three (3) days after it is transmitted unless a confirmation that the email has not been delivered has been received. A notice published on the Company’s website and in at least two (2) daily newspapers with national circulation shall be deemed to have been delivered upon the publication of the notice.
- Notice of every general meeting shall be given in the manner hereinbefore authorised to:
- a. -> every registered member; and
- b. -> the auditor for the time being of the Company.