THE COMPANIES ACT, 2013
[Pursuant to rule 19(2) the Companies (Incorporation) Rules, 2014]
ARTICLES OF ASSOCIATION
OF
XYZ FOUNDATION
(A Company limited by shares not for profit under section 8 of the Companies Act, 2013)
Also Read: Format of Memorandum of Association of of section 8 Company limited by Shares
PRELIMINARY | |||||||||
1 | Subject as hereinafter provided the Regulations contained in Table ‘F’ in the First Schedule to the Companies Act, 2013 shall apply to the Company except in so far as otherwise expressly incorporated herein | ||||||||
INTERPRETATION | |||||||||
2 |
In the interpretation of these Articles, the following expressions shall have the following meanings unless repugnant to the subject or context: “Act” means the Companies Act, 2013, as applicable and as amended or restated or replaced from time to time.“ Additional Directors” shall have the meaning ascribed to such term in Article 35 below. “Alternate Directors” shall have the meaning ascribed to such term in Article 36 below. “Applicable Law” means any statute, law, ordinance, rule, administrative interpretation, regulation, by-law, press note, order, writ, injunction, directive, notification, judgment or decree issued by the Government of India or any of its ministries, departments, secretariats, agencies, legislative bodies, courts and tribunals, whether at the central, state or municipal/local level.“Articles” or “Articles of Association” means these articles of association. |
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“Auditors” means and includes those persons appointed as such, for the time being, by the Company to discharge the duties of auditors under the Act.
“Board” means the Board of Directors of the Company. “Common Seal” means the common seal of the Company. |
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“Company” means XYZ FOUNDATION a company incorporated under the Act. | |||||||||
“Director” means any director of the Company, including an Additional Director or Alternate Director.
“Share Holder” means the duly registered holder of shares for the time being of the Company. “Memorandum” or “Memorandum of Association” means the memorandum of association of the Company. Words importing the singular number shall also include the plural number and vice versa. Words importing the masculine gender shall also include feminine gender and words importing persons shall also include corporations. |
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3 | Unless the context otherwise requires, words or expressions contained in these Articles shall bear the same meanings as in the Act. | ||||||||
PRIVATE COMPANY | |||||||||
4 | The Company is a Private Limited Company within the meaning of section 2 (68) the Companies Act, 2013, means a company having a minimum paid-up share capital as may be prescribed, and which by this articles,— | ||||||||
(i) | Restricts the right to transfer its shares; | ||||||||
(ii) | Except in case of One Person Company, limits the number of its members to two hundred: Provided that where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this clause, be treated as a single member: | ||||||||
Provided further that— | |||||||||
(A) | Persons who are in the employment of the company; and | ||||||||
(B) | Persons who, having been formerly in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased, shall not be included in the number of members; and | ||||||||
(iii) | prohibits any invitation to the public to subscribe for any securities of the company;] | ||||||||
SHARE CAPITAL AND VARIATION OF RIGHTS |
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5 | The Authorized Share Capital of the Company shall be such amounts and be divided into such shares as may, from time to time, be provided in Clause VIII of the Memorandum of Association with power to increase or reduce the capital in accordance with the Company’s regulations and legislative provisions for the time being in force in that behalf with the powers to divide the share capital, whether original increased or decreased into several classes and attach thereto respectively such ordinary, preferential or special rights and conditions in such a manner as may for the time being be provided by the Regulations of the Company and allowed by law. | ||||||||
6 | The business of the Company may be commenced soon after obtaining the certificate of commencement of business and filing registered office declaration by the Company. | ||||||||
7 | The shares shall be under the discretionary control of the Directors who may allot or otherwise dispose of the same, to such person at such time and on such term & conditions as they may in their absolute discretion think fit & proper. | ||||||||
8 | The Company may issue shares in accordance with the provisions of Section 62, Section 42 and any other applicable provisions of the Act and Rules made thereunder. Further Shares may be registered in the name of any minor through a guardian only as fully paid shares. | ||||||||
9 | The Directors may allot and issue shares in the Capital of the Company as partly or fully paid up in consideration of any property sold or goods transferred or machinery supplied or for services rendered to the Company in the conduct of its business. | ||||||||
10 | Subject to the provisions of section 68, 69, and 70 of the Companies Act, 2013 and any statutory amendments or re-enactments thereof and compliance of the provisions thereof by the Company, the Company is authorized to purchase its own shares or other specified securities and the Company in general meeting may decide to issue fully paid up bonus share to the members if so, recommended by the Board of Directors. | ||||||||
11 | The Share Certificate to the Share registered in the name of two or more person shall be delivered to first named person in the register and this shall be a sufficient delivery to all such holders. | ||||||||
12 | Each fully paid up share shall carry one vote. | ||||||||
13 | Subject to the provisions of Section 55 of the Companies Act, 2013, the Company may issue preference shares, which shall be redeemed within a period not exceeding Twenty Years from the date of their issue. | ||||||||
INCREASE OF CAPITAL | |||||||||
15 | The Company in General Meeting may, from time to time, by ordinary resolution increase the share capital of the Company by the creation of new shares by such sum, to be divided into shares of such amount as may be deemed expedient. | ||||||||
16 | Subject to any special rights or privileges for the time being attached to any shares in the capital of the Company when issued, the new shares may be issued upon such terms and conditions and with such preferential, qualified or such rights and privileges or conditions there to as general meeting resolving upon the creation thereof shall direct. | ||||||||
17 | Before the issue of any new shares, the Company in General Meeting may make provisions as to the allotment and issue of the new shares and in particular may determine to whom the shares be offered in the first instance and whether at par or premium. In case no such provision is made by the Company in General Meeting, the new shares may be dealt with according to the provisions of these Articles. | ||||||||
18 | Whenever the company proposes to increase its subscribed capital by the issue of further shares, such shares shall be offered either to its existing shareholders or employees under ESOP scheme or to any other person subject to the provisions of Section 62 of the Companies Act, 2013. Such existing Shareholders shall have right to renounce the shares offered to him in favour of any other person; | ||||||||
ALTERATION OF SHARE CAPITAL | |||||||||
19 | The Company, by ordinary resolution may, from time to time: | ||||||||
19.1 | Consolidate and divide all or any of its share capital into shares of larger amount than its existing shares. | ||||||||
19.2 | sub-divide its share or any of them into shares of smaller amount than is fixed by the Memorandum of Association so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived. | ||||||||
19.3 | Cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of share so cancelled. Where any share capital is sub-divided, the Company in General Meeting, subject to the provisions of Section 43, 47 of the Companies Act, 2013, may determine that as between the holders of the shares resulting from sub-division, one or more of such shares shall have same preferential or special rights as regards payment of capital, voting or otherwise. | ||||||||
LIEN | |||||||||
20 | Subject to the provisions of Companies Act, 2013 the Company shall have a first and paramount lien upon all the shares (not being a fully paid up share) for all monies (presently payable) registered in the name of such member (whether solely or jointly with others) and upon the proceeds of sale thereof for his debts, liabilities and engagements (whether presently payable or not) solely or jointly with any other person, to or with the Company, whether the period for the payment, fulfilment or discharge thereof shall have actually lien or not and such lien shall extend to all dividends, from time to time, declared in respect of shares, subject to section 123 of the Companies Act 2013. The Board of Directors may at any time declare any shares to be wholly or in part exempt from the provisions of this clause. | ||||||||
CALLS ON SHARES AND TRANSFER OF SHARES | |||||||||
21 | The Directors are empowered to make call on members of any amount payable at a time fixed by them, However, the Company may accept from any member, the whole or a part of the amount remaining unpaid on any shares held by him, even if no part of that amount has been called up | ||||||||
22 | Any member desiring to sell any of his shares must notify the Board of Directors of the number of shares, the fair value and the name of the proposed transferee and the Board must offer to the other shareholders the shares offered at the fair value and if the offer is accepted, the shares shall be transferred to the acceptor and if the shares or any of them, are not so accepted within one month from the date of notice to the Board the members proposing transfers shall, at any time within Two months afterwards, be at liberty, subject to Articles 23 and 24 hereof, to sell and transfer the shares to any persons at the same or at higher price In case of any dispute, regarding the fair value of the share it shall be decided and fixed by the Company’s Auditor whose decision shall be final . | ||||||||
23 | No transfer of shares shall be made or registered without the previous sanction of the Directors, expect when the transfer is made by any member of the Company to another member or to a member’s wife or child or children or his heirs The Directors may decline to sanction the transfer subject to Section 58 of the Companies Act, 2013 . | ||||||||
24 | The Directors may refuse to register any transfer of shares (1) where the Company has a lien on the shares or (2) where the shares are not fully paid up shares, subject to Section 58 of the Companies Act, 2013 | ||||||||
25 | Subject to Section 58 of the Companies Act, 2013 the Directors may in their discretion, refuse to register the transfer of any shares to any person, whom it shall, in their opinion, be undesirable in the interest of the Company to admit to membership | ||||||||
26 | At the death of any members his or her shares be recognized as the property of his or her heirs upon production of reasonable evidence as may required by the Board of Directors | ||||||||
27 | Subject to Sec 56 of the Companies Act 2013, every instrument of transfer, duly stamped must be accompanied by the certificate of share proposed to be transferred and such other evidence as the director may require | ||||||||
28 | The Certificate of title of share shall be provided attaching of the seal of the Company | ||||||||
GENERAL MEETINGS | |||||||||
29 | All General Meetings other than the Annual General Meeting shall be called Extraordinary General Meetings. | ||||||||
30 | (a) | The Board may whenever it thinks fit, call an Extra-ordinary General Meetings. | |||||||
(b) | If at any time directors capable of acting who are sufficient in number to form a quorum are not within India, any director or any two members of the company may call an extraordinary general meeting in the same manner, as nearly as possible, as that in which such a meeting may be called by the Board. | ||||||||
(c) | The Board shall, on a requisition made by, such number of members who hold, on the date of the receipt of the requisition, not less than one-tenth of such of the paid-up share capital of the company as on that date carries the right of voting call an Extraordinary General Meeting. | ||||||||
31 | At least twenty-one days, clear notice of General Meetings of the Company, specifying the date, day, hour and place of meeting and the objects shall be given A General Meeting may be called after giving a notice shorter than twenty one days if consent is accorded in case of any general meeting of all the members entitled to vote thereat and in case of any other meeting by members holding not less than 95 (Ninety Five) percent of the paid up share capital and is given a right to vote in a meeting In every such notice calling meeting of the Company there will appear a statement that member is entitled to appoint proxy to attend and to vote instead of himself | ||||||||
32 | No business shall be transacted at any general meeting, unless quorum of members in present At least two members present in person shall be the quorum for general meeting subject to the provisions of Section 103 of the Companies Act, 2013 | ||||||||
33 | The Chairman, if any, of the Board, shall preside as Chairman of all Board and general meetings, of the Company If at any time the Chairman is not present within 15 minutes after the time appointed for holding the same, the Directors present shall elect one of the Directors present to be Chairman of such meeting If no director is present or unwilling to act as Chairman, the members may appoint one of their members as Chairman | ||||||||
34 | No member shall be entitled to exercise any voting rights either personally or by proxy at any meeting of the Company in respect of any shares registered in his name on which any calls or other sums presently payable by him have not been paid or in regard to which the Company has exercised any right of lien | ||||||||
MINUTES | |||||||||
35 | Directors shall respectively cause minutes of all proceedings of General Meetings and of all proceedings at meetings of Board of Directors or of committee of the Board or by postal ballot to be duly entered in books to be maintained for that purpose in accordance with Section 118 of the Companies Act, 2013. The minutes of each meeting shall contain: | ||||||||
35.1 | The fair and correct summary of the proceedings there at. | ||||||||
35.2 | The name of the Directors present at the meeting in case of meeting of Board or committee of Board of Directors. | ||||||||
35.3 | The name of the Directors, if any, dissenting from or not consenting to the resolution, in the case of each resolution passed at the meeting of Board or committee of Board of Directors. | ||||||||
35.4 | All appointments made at any meeting. Any such minutes, purposing to be signed in accordance with the provisions of Section 118 of the Act, shall be evidence of the proceedings. | ||||||||
DIRECTORS | |||||||||
36 | The number of Directors shall not be less than two and not more than fifteen. | ||||||||
37 | The following shall be the First Directors of the Company. | ||||||||
1) | A | ||||||||
2) | S | ||||||||
3) | M | ||||||||
4) | K | ||||||||
5) | N | ||||||||
38 | The Directors may from time to time, appoint one or more of their body to the office of the Managing Director for one or more of the divisions of the business carried on by the Company and to enter into agreement with him in such terms and conditions as they may deem fit. | ||||||||
39 | A meeting of the Board shall be called by giving not less than seven days’ notice in writing to every director at his address registered with the Company and such notice shall be sent by hand delivery or by post or by electronic means | ||||||||
40 | Subject to the provisions of the Act the quorum for Board Meeting shall be one third of its total strength or two directors, whichever is higher, and the participation of the directors by video conferencing or by other audio-visual means shall also be counted for the purposes of quorum | ||||||||
41 | No qualification share is required for appointment as a Director | ||||||||
42 | Subject to the provisions of the Act and the Rules framed there under, every Director attending Board Meeting shall be paid out of the funds of the Company such amount as sitting fees as may be determined by the Board for each Meeting of the Board of Directors attended to by him | ||||||||
43 | The business of the Company shall be managed by the Board of Directors, who may exercise all such powers of the Company as by the Act, or by these Articles required to be exercised in general meeting subject nevertheless to any regulation being not inconsistent with the aforesaid regulations, or provisions as may be prescribed by the Company in general meeting | ||||||||
POWERS AND DUTIES OF DIRECTORS |
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44 | In furtherance of and without prejudice to the general powers conferred by or implied in the immediately preceding Article and any other powers conferred by these Articles, it is hereby expressly declared that subject to Section 179 of the Act, the Directors may delegate all or any of their powers to any Committee of Directors, the Managing Director, Manager or Company Secretary or any other officer of the Company upon such terms and conditions as the Directors shall deem fit | ||||||||
45 | Subject to the provisions of the Act, the Directors may exercise all the powers of the Company to borrow or raise money whether bearing interest or otherwise at rates to be fixed by them to secure the repayment thereof by the issue of the debenture or other security charges upon all or any part of the undertaking and assets of the Company including any capital for the time being uncalled for | ||||||||
46 | (i) | Subject to the provisions of Section 149, the Board shall have power at any time, and from time to time, to appoint a person as an additional director, provided the number of the directors and additional directors together shall not at any time exceed the maximum strength fixed for the Board by the Articles, if any. | |||||||
(ii) | Such person shall hold office only up to the date of the next Annual General Meeting of the Company but shall be eligible for appointment by the Company as a director at that meeting subject to the provisions of the Act | ||||||||
47 | Subject to the provisions of Section 161, the Board may appoint a person not being a person holding any alternate directorship for any other director in the Company, to act as an alternate director for a director during his absence for a period of not less than three months from India. Provided that an alternate director shall not hold office for a period longer than that permissible to the director in whose place he has been appointed and shall vacate the office if and when the director in whose place he has been appointed returns to India. | ||||||||
48 | The Directors may from time to time, appoint one or more of their body to the office of the Whole Time Director or Executive Director for one or more of the divisions of the business carried on by the Company and to enter into agreement with him in such terms and conditions as they may deem fit. | ||||||||
49 | Subject to the provisions of Section 161, the Board may appoint any person as a director nominated by any institution or Government in pursuance of the provisions of any law for the time being in force. | ||||||||
50 | All cheques, promissory notes, drafts, hundis, bills of exchange and other negotiable instruments of the Company, shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be, by such person and in such manner as the Board shall from time to time by resolution determines. | ||||||||
51 | Directors shall be competent to carry out all such objects set forth in the Memorandum of Association as may lawfully be carried out by them and in particular to do the following acts and things: | ||||||||
a) | To pay all expenses incurred for the formation and registration of the Company and for procuring its capital to be subscribed. | ||||||||
b) | To have the superintendence, control and direction over the Managing Director, Manager and all other officers of the Company. | ||||||||
c) | To appoint Agents or Attorneys for the Company in India or abroad with such powers (including powers to sub-delegate upon such terms and conditions as the Directors shall think fit) and to revoke such appointments. | ||||||||
d) | To acquire by lease, mortgage, purchase or exchange or otherwise any property, rights or privileges which the Company is authorised to acquire at such price and on such terms and conditions as the Board may think fit and to sell, let, exchange or otherwise dispose of absolutely or conditionally any property rights or privileges or the undertaking of the Company for such price and upon terms and conditions as the Board shall think fit, subject however to the restrictions imposed by the Act. | ||||||||
e) | To open on behalf of the Company any account or accounts with such Bank or Banks as the Board may select or appoint, to operate such accounts, to make, sign, draw, accept, endorse or otherwise execute all cheques, promissory notes, drafts, hundies, orders, bills of exchange, bills of lading and other negotiable instruments, to make and give receipts, released and other discharges for moneys payables to the Company and for claims and demands of the Company, to make contracts and to execute deeds; | ||||||||
f) | To invest and deal with any of the moneys of the Company in such manner as they may think fit and to realize or vary such investments subject to the provisions of the Act. | ||||||||
g) | To pay and reimburse the Managing Director and other Directors or officers of the Company in respect of any expenses incurred by them on behalf of the Company | ||||||||
h) | To make calls on shareholders in respect of moneys unpaid on shares held by them | ||||||||
i) | To increase or reduce the Company’s capital | ||||||||
j) | Consolidate and divide all or any of its share capital into shares of a larger amount than its existing shares | ||||||||
k) | Convert all or any of its fully paid-up shares into stock, and reconvert that stock into fully paid-up shares of any denomination | ||||||||
l) | Cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled | ||||||||
m) | To issue and allot new shares | ||||||||
n) | To make any Rights Issue of shares | ||||||||
o) | To adopt any resolution to alter the Memorandum and Articles of Association | ||||||||
p) | To invest or to join any company to invest in any other company | ||||||||
q) | To undertake or permit any merger, consolidation or reorganization of the Company | ||||||||
r) | Subject to the provisions of Section 186 of the Companies Act 2013, to give to make any loan to any person or other body corporate or give guarantee or provide security in connection with a loan made by any other person to or to any other person by anybody corporate | ||||||||
s) | The business of the Company shall be managed by the Board of Directors who may pay all such expenses preliminary and incidental to the promotion, formation, establishment and registration of the Company as they think fit and may exercise all such power of the Company and do on behalf of the Company all such acts as may be exercised or done by the Company in general meeting and are not barred by statute or by these Articles and are required to be exercised or done by the Company in General Meeting, subject nevertheless to any regulations of the Articles, to the provisions of the statute and to such regulations not being inconsistent with aforesaid regulations or provisions as may be prescribed by the Company in general meeting but no regulation made by the Company general meeting shall invalidate any prior act of the Directors which would have been valid if such regulations had not been made | ||||||||
52 | All acts done in any meeting of the Board or of a Committee thereof or by any person acting as a director, shall, notwithstanding that it may be afterwards discovered that there was some defect in the appointment of any one or more of such directors or of any person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such director or such person had been duly appointed and was qualified to be a director | ||||||||
53 | Save as otherwise expressly provided in the Act, a resolution in writing, signed by all the members of the Board or of a Committee thereof, for the time being entitled to receive notice of a meeting of the Board or Committee, shall be valid and effective as if it had been passed at a meeting of the Board or Committee, duly convened and held | ||||||||
54 | Chairman and Managing Director of the Company shall be jointly and severally authorised to operate the Bank Accounts in the name of the Company | ||||||||
ACCOUNTS |
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55 | 1) | The Board shall cause proper books of accounts to be maintained in accordance with the provisions of the Act. | |||||||
2) | Subject to the provisions of the Act, the Board shall also, from time to time, determine whether and to what extent and at what times and places and under what conditions or regulations the accounts books of the Company (or any of them) shall be open for inspection by the Members. | ||||||||
3) | No Member (not being a Director) or other person shall have any right to inspect any accounts book or document of the Company except as conferred by Applicable Law or authorized by the Board or by the Company in a General Meeting. | ||||||||
AUDIT | |||||||||
56 | The Balance Sheet and Profit and Loss Account shall be audited by the Auditors in accordance with the provisions of the Act | ||||||||
AUDITORS | |||||||||
57 | The first Auditors of the Company shall be appointed by the Board within one month from the date of incorporation of the Company and such Auditors shall hold office until the conclusion of the first annual General Meeting. | ||||||||
58 | The Board may fill any casual vacancy in the office of the Auditors, but while any such vacancy continues, the remaining Auditors (if any) may act. Where such a vacancy is caused by the resignation of the Auditors, the vacancy shall only be filled by the Company in a General Meeting. | ||||||||
59 | The remuneration of the Auditors shall be fixed by the Company in a General Meeting except that the remuneration of the first Auditors appointed by the Board may be fixed by the Board. | ||||||||
SECRECY |
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60 | Every Director, manager, Auditor, trustee, shareholder, member of a committee, officer, servant, agent, accountant or other person employed in the business of the Company shall, if so required by the Board, before entering upon its duties, sign a declaration pledging to observe strict secrecy in relation to all confidential information of the Company and its customers and shall by such declaration pledge not to reveal any of the matters which may come to its knowledge in the discharge of its duties, except as required by the Board, or by any General Meeting, or by a court of law, or so far as may be necessary in order to comply with any of the provisions of these Articles or the provisions of the Act. | ||||||||
OPERATION OF BANK ACCOUNTS | |||||||||
61 | The Board shall have the power to authorize any Director or Directors or any officer or officers to open bank accounts; to sign cheques on behalf of the Company; to operate all bank accounts of the Company; and to receive payments, make endorsements, draw and accept negotiable instruments, hundies and bills. | ||||||||
COMMON SEAL | |||||||||
62 | The Common Seal shall have inscribed thereon the name of the Company. | ||||||||
63 | 1) | The Board shall provide for the safe custody of the Common Seal of the Company. | |||||||
2) | The Common Seal shall not be affixed to any instrument except by the authority of a resolution of the Board or a committee of the Board authorized by it in that behalf. | ||||||||
3) | Share Certificates shall be signed and sealed in accordance with the Rules made thereunder. In all other cases, the Common Seal shall be affixed in the presence of one Director, the Secretary or any other person authorized by the Board, who shall attest the same on behalf of the Company. | ||||||||
4) | The Board may authorize the use of the Common Seal of the Company in any territory, district or place not situated in India. | ||||||||
WINDING UP |
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64 | Subject to the provisions of Chapter XX of the Act and rules made thereunder— | ||||||||
(i) | If the company shall be wound up, the liquidator may, with the sanction of a special resolution of the company and any other sanction required by the Act, divide amongst the members, in specie or kind, the whole or any part of the assets of the company, whether they shall consist of property of the same kind or not. | ||||||||
(ii) | For the purpose aforesaid, the liquidator may set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the members or different classes of members. | ||||||||
(iii) | The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories if he considers necessary, but so that no member shall be compelled to accept any shares or other securities whereon there is any liability. | ||||||||
INDEMNITY | |||||||||
65 | Subject to the provisions of the Act, every Director, Secretary and other officer or employee of the Company shall be indemnified by the Company against, and it shall be the duty of the Directors to pay out of the funds of the Company, all costs, losses and expenses (including travelling expenses) which any such person may incur or become liable to pay by reason of any contract entered into or act or deed done by such person as such Director, Secretary, other officer or employee in the lawful and proper discharge of such person’s duties. Subject to the provisions of the Act, every Director, Secretary or other officer or employee of the Company shall be indemnified against any liability incurred by such person in defending any bona fide proceedings, whether civil or criminal in which judgment is given in his favour, or in which he is acquitted, or in connection with any application under the Act in which relief is given to such person by a court. | ||||||||
We, the several persons whose names, addresses, descriptions and occupations are herewith subscribed are desirous of being formed into a private limited company not for profit, in pursuance of this Article of Association: |