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Terms and Conditions of Business:
The following terms shall
where the context so admits have the following meanings:
"Affiliate" means any parent or subsidiary entity of the Management
Company or any fellow subsidiary of the same parent entity or any other
entity otherwise affiliated with the Management Company; "This Agreement" means these Terms and Conditions of Business;
"The Client" means and includes the beneficial owners of the
Company and shall include in the case of an individual, his heirs,
personal representative, and assigns, and shall in the case of more
than one person mean such persons jointly and severally and shall
include the survivor or survivors of them and the heirs, personal
representatives, and assigns of each of them.
"The Company" means and includes any company beneficially owned
by the Client for which Services are provided by the Management
Company; "The Elan Group" means the Management Company and its
Affiliates; "The Management Company" means Elan Corporate Services
Limited and includes any Affiliate which provides services to the
Client whose registered office is at Palm Chambers, PO Box 119, Road
Town, Tortola, British Virgin Islands or the Company; "Service" means any one or more of the following: acting as
registered agent, provision of registered office, provision of
directors or nominee shareholders, maintenance of books and records,
mail and message forwarding, opening and
maintaining bank accounts, book keeping, administration and any
other corporate administration or management services which the
Management Company agrees to provide.
1. The Client has requested the Management Company to provide
Services to the Client by the completion and submission of a Company
Information Form or by such other means acceptable to the Management
Company and has thereby agreed that these Terms and Conditions shall
apply to all Services to be provided by the Management Company to the
Client and in relation to any Company incorporated or managed by the
Management Company for the Client.
2. The Management Company is authorised to take any steps that
it may in its absolute discretion think fit by way of provision of
Services to further the business or protect the business of the Client
and to take such professional advice at the Company's or the Client's
expense as the Management Company may consider necessary.
3. Any nomination of a director, officer, or shareholder will be
at the absolute discretion of the Management Company and may be an
individual director or other officer of, or a nominee company wholly
owned and controlled by the Management Company. The Management
Company reserves the right to change the individual or company for
the time being appointed so long as the appointee is such a director
or other officer or nominee company and the Client agrees to take
all steps and to do all acts as may be necessary to give effect to
such change.
4. Wherever the Management Company or its nominated person or
nominee company is the secretary of the Company, the Management
Company's office must, unless otherwise agreed, be the registered or
principal office of the Company and all statutory books and records
must be kept by the Management Company.
5. If in the opinion of the Management Company there has arisen
or could arise any conflict present or future between the Client
and/or the Company and the Management Company and/or any interests or
other clients of the Management Company, the Management Company
reserves the right to withdraw the Services provided or to be
provided by it under this Agreement and shall be under no obligation
to give any prior notice of its decision. In the event of any
conflict arising or being about to arise, the Management Company
shall be fully entitled to act for or provide Services for the other
clients notwithstanding that it may be contrary to the interests of
the Client or the Company to do so, provided only that the Management
Company shall not make use of any information which it has obtained
from providing Services hereunder and which is confidential to the
Client and/or the Company.
6. In the event that the Management Company in its absolute
discretion considers that for whatever reason it does not wish to
continue to provide any or all of the Services hereunder, it may
immediately resign without being obligated to give any notice or
reason whatsoever. The Client may at any time upon one month's
prior notice in writing require the Management Company to cease to
provide any or all of the Services hereunder.
7. The Client undertakes to be bound by, and authorises the
Management Company to act on all lawful and reasonable instructions,
requests, and advice signed or given by, or purporting to be signed
or given by, the Client or his authorised representative or any person
the Management Company believes to be duly authorised by the Client.
Subject to the provisions of Paragraph 9 below, all instructions,
requests, and advice shall be given by any such person in writing to
the Management Company quoting the name of the Company. Instructions,
requests, and advice to the Management Company given in the above
manner shall be effective only on receipt by the Management Company.
8. Where the Client comprises more than one individual (each a
"Client Individual"), each Client Individual hereby agrees that each
of the other Client Individuals may give instructions to the Management
Company in connection with this Agreement and that the Management
Company may consider such instructions to be proper Client instructions
unless the Management Company receives written notice to the contrary
from any one of the Client Individuals. Each Client Individual agrees
that his or her liabilities and obligations under this Agreement are
joint, several, and indivisible regardless of whether the Client
Individuals act jointly or individually with respect to the Company
and regardless of which of them gave any instructions.
9. Without prejudice to the provisions of Paragraph 7 above, from time
to time (on an exceptional basis), the Client or any authorized
representative may give to the Management Company telephone or other
oral instructions regarding the Company.
The Client agrees to promptly furnish the Management Company with
written confirmation of all instructions, if requested by the
Management Company, but the Client requests the Management Company
to execute any such oral instructions immediately, and in particular,
before receipt of any requested written confirmation.
It is understood and agreed that the risks of misunderstandings
and errors, and the risks of instructions being given by unauthorised
parties, are the Client's own, and that neither the Management Company
nor any Affiliate communicating such instructions shall be responsible
for any loss, liability, or expense that may result from such
misunderstandings, errors, or unauthorised instructions. The Client
assumes all responsibility for all consequences that may result from
the Management Company following such instructions in good faith and
undertakes to indemnify and hold harmless the Management Company and
its directors, officers, employees, shareholders and each of them
("the Indemnitees") against all costs, claims, liabilities, and
damages of any kind or nature whatsoever which may be suffered or
incurred by the Indemnitees in connection therewith.
The Management Company may at any time, at its discretion, refuse
to execute any oral instructions or any part thereof, or may prescribe
such conditions precedent to accepting oral instructions as it may
deem necessary. The Client hereby releases and indemnifies the
Indemnitees from and against any costs, claims, liabilities, and
damages of any kind of nature whatsoever which may be suffered or
incurred by the Indemnitees arising out of any such refusal to
execute oral instructions.
10. The Management Company may in its absolute discretion refuse
to comply with any instructions received from the Client or any
authorised representative, if in its opinion such instruction or the
implementation thereof would contravene any law or regulation of any
applicable jurisdiction.
11. The Management Company shall not be responsible for the
authenticity of any signature, instruction, or notice by the Client
or any authorised representative or be in any way liable for giving
effect to any forged signature, instruction, or notice purportedly
given by the Client or any authorised representative. The Management
Company shall be entitled but not bound to require that any notice,
instruction, or signature be authenticated to its satisfaction.
Neither the Management Company nor any of its directors, officers, or
employees shall incur any liability in respect of any action taken or
permitted to be taken in reliance upon any instruction, notice, other
documents, or oral communication believed to be genuine and shall not
be responsible for any nonreceipt thereof or any errors or ambiguity
in any notice or instruction.
12. In the event that:
(a) any demand is made against the Client
or the Company for payment of any sum due by the Company to any person,
including without prejudice to the generality of the foregoing, any
taxes, duties, fees or other governmental impositions and such payment
has not yet been made; or
(b) the Management Company requires any
instructions from the Client or the Company, or in the opinion of the
Management Company it is necessary to take action regarding the
affairs of the Company (as pertaining to this Agreement) in the
Client's interest or to protect the interest of the Management Company
and the Management Company is unable to obtain instructions at all,
or instructions which the Management Company in its absolute
discretion considers adequate lawful and proper, the Management
Company shall be entitled to proceed in any one or more of the
following ways without instructions:
a) take no further action on a
particular matter; b)take no further action at all in relation to the
Company; c) utilize any assets of the Company in or toward the
satisfaction of any such demand; d) have the Company dissolved;
e) transfer all or any shares in or capital of or other interest
in the Company into the name of the Client; f) take such other action
as the Management Company considers to be necessary, including
seeking legal advice at the expense of the Client and where
appropriate seeking directions or a determination from any court of
competent jurisdiction at the sole expense of the Client.
Provided that if the Management Company shall have given notice
that the provisions of this paragraph shall apply and unless within
the period stated in such notice the Client has taken such action as
shall therein be specified, or shall have given the Management Company
instructions satisfactory to the Management Company, the Management
Company shall incur no liability to the Client as a result of taking
any of the above actions or inaction in accordance with this
paragraph.
13. The Management Company may, in the conduct of its functions
under this Agreement, instead of acting personally, employ and pay an
agent (including any agent located in another jurisdiction and
including another member of The Elan Group), whether or not a
solicitor or other professional person, in its absolute discretion to
transact or conduct any business and to do or concur in doing all
acts required by the Management Company.
14. As remuneration for its Services hereunder the Management
Company shall receive from the Company or, failing which the Client,
such fees and charges in such manner as is set out in its schedule of
charges (as varied from time to time) or as may be agreed in writing
with the Client. In addition, the Management Company shall be
entitled to reimbursement of all expenses incurred in connection with
the Client or the Company, including government filing fees, long
distance charges, telecopy correspondence, photocopies, postage and
couriers. The Management Company shall be entitled to deduct from time
to time, at the discretion of the Management Company, any such fees
and expenses from any funds of the Company or the Client.
15. The Client shall keep the Company at all times in funds
sufficient to honor its liabilities as and when they become due, and
the remuneration and disbursements payable to the Management Company
will be a first charge on the funds of the Company. All monies payable
to the Management Company shall be paid within 30 (thirty) days, and
interest at the rate of 1 (one) percent per month may be charged on
overdue payments at the absolute discretion of the Management Company.
16. Any member of the Elan Group shall be entitled to retain all
commissions, fees, or other remuneration or benefit obtained (whether
directly or indirectly): (a) on any purchase or sale of investments;
(b) by reason of any member of the Elan Group acting as manager,
trustee, director or officer of, or advisor to any company, investment
fund or scheme, shares or units of which entity are comprised in the
assets of the Client or the Company; (c) under any investment
advisory or other arrangements entered into on behalf of the Client
or the Company; (d) on the giving of advice or other Services to or
in respect of the Client or the Company.
17. The Management Company and/or any other member of the Elan
Group may act as principal at any time when buying or selling any
security or other property owned by the Client or the Company or to
be purchased by the Client or the Company, notwithstanding that it
may have been purchased or may subsequently be sold by the Management
Company or such other company, as the case may, be at a different
price and shall not be required to account to the Client or the
Company for the difference, provided that the price at which such
property or security is bought and/or sold by the Client or the
Company is the full market price of the security or property
concerned.
18. The Client agrees that any member of the Elan Group may act
on the Client's or the Company's behalf even though a member of the
Elan Group may have a potential conflict of duty or interest in a
transaction, including the fact that any member of the Elan Group may
provide brokerage Services to other clients; act as advisor to an
issuer of securities; invest on the Client's or the Company's behalf
in mutual or unit trust funds established, sponsored, advised, or
managed by any member of the Elan Group; act in the same transaction
as agent for more than one client; have a material interest in an
issue of securities; or earn fees and profits from any of these
activities in addition to the fees charged to the Client or the
Company for the Services of any member of the Elan Group under this
Agreement or any related agreement.
19. The Client agrees to indemnify and hold harmless the
Indemnitees from and against all or any costs, claims, liabilities and
damages of any kind or nature whatsoever which may be suffered or
incurred by the Indemnitees in any way relating to or arising out of
this Agreement or the performance of the duties of the Management
Company hereunder of any act performed or done or omitted on the
Client's behalf, provided that this indemnity shall not extend to any
cost, claims, liabilities or damages arising solely from the willful
default or gross negligence of the Indemnitees.
20. The Management Company shall be entitled and is authorised for
the purpose of the indemnity set out in the above paragraph to have
recourse to any assets or funds which it may hold or have under its
control for the Client's account (personal, corporate accounts, and
all others) or the account of the Company.
21. This Agreement shall be binding upon the Client's successors,
executors, administrators, liquidators, and other personal
representatives. This Agreement shall be capable of assignment by the
Management Company to another entity within the Elan Group in which
event the law of the jurisdiction of incorporation of the new entity
shall become the governing law for this Agreement.
22. Unless the Management Company is otherwise instructed, all
assets in excess of the issued share capital placed in the Company
will be treated as interest free, unregistered, unsecured loans from
the Client (if more than one jointly) to the Company. Such loans are
repayable upon demand and any payments made by the Company to the
Client may unless otherwise characterized be treated as repayment of
such loans.
23. The Management Company reserves the right by giving notice in
writing from time to time signed by a director officer of the
Management Company to vary these standard Terms and Conditions by
altering, adding to, or deleting any or all of them, or making any
new terms and/or conditions, provided always that no such variation
shall become effective until the expiration of one month from the date
of the Management Company giving notice to the Client of such
variation. No employee or agent of the Management Company is
authorised to vary or waive any provision of this Agreement either
generally or in any specific case and no variation or waiver shall be
effective unless the same is in writing signed by a director or
officer of the Management Company.
24. The Client confirms, undertakes, and covenants as follows:
(a) that any asset introduced or caused to be introduced to the
Company has been lawfully introduced, and is not derived from or
otherwise connected with, any illegal activity; (b) that such asset
belongs to the Client and the Client has full
power and authority to transfer same to the Company and without
prejudice to the generality of the foregoing, the transfer of such
asset does not constitute a fraud on the Client's creditors;
(c) that the Client has taken appropriate tax, legal, and other advice
with regard to the establishment, conduct, and use of the Company and
these Terms and Conditions; (d) that no instructions given to the
Management Company will require or involve any unlawful act or
contain any falsehood and that all information given will be accurate.
25. The Client confirms, undertakes, and covenants as follows:
(a) that neither the Client nor the Company will be engaged or
involved directly or indirectly in any unlawful activity and the
Company will not be used for any unlawful purpose and the Client will
at the request of the Management Company keep the Management Company
adequately informed as to all business to be transacted in the name of
or for the account of the Company, and that the Client will use its
best endeavours to ensure that the Company is run in a proper and
businesslike manner and complies with all applicable laws and
regulations;
(b) that the Client will not use the Company in any manner contrary to
any applicable code of dealing in securities;
(c) that the Client shall procure that the Company complies with all
filing requirements in any applicable jurisdiction; and
(d) that the Client will comply with any and all applicable tax, or
other reporting, filing and payment obligations arising out of the
Client's ownership or disposal of the Company and any income, profits
or gains of the Company.
26. The Client acknowledges that the Management Company does not
give any legal or tax advise, nor does the Management Company make
any representation, whether express or implied, that any Company or
other entity or any particular corporate structure or organisation,
will be fit for or achieve any particular purpose or the Client,
whether or not such purpose was notified by the Client to the
Management Company.
27. The Client shall notify the Management Company before
alienating, assigning, selling, pledging, or otherwise disposing of
or encumbering the Client's interest in the Company or any part
thereof.
28. The Client acknowledges that in certain circumstances the
Management Company may be obliged by order of a competent Court or
authority to disclose evidence and information to courts or authorities
in connection with the Client's or the Company's affairs. In
particular, but without limitation, if any individual associated with
the Management Company is personally served with such an order or
subpoena by any Court or fiscal or government authority, the Management
Company reserves the right to comply with such order or subpoena,
notwithstanding that the Management Company has not been so served.
Where the Management Company receives such a disclosure order, unless
prohibited by the terms of such order, the Management Company shall
promptly notify the Client or the Company of same.
29. Any notice required to be given hereunder shall be in writing
addressed to the party concerned at its address shown herein or such
other address as either party may from time to time have notified to
the other for the purpose, failing which it will be addressed to the
last known usual address of such party. Subject to paragraph 7 above,
any notice hereunder shall be served by one to the following methods
and if: (a) delivered personally or by courier shall be deemed to
have been given at the time of such delivery or refusal of receipt by
the addressee; (b) sent by airmail post shall be deemed to have been
given 14 (fourteen) days after posting; (c) sent by facsimile shall be
deemed to have been given at the time of dispatch.
30. These Terms and Conditions shall be governed by and construed
in accordance with the laws of the British Virgin Islands, and for the
sole benefit of the Management Company the Client hereby submits to the
non-exclusive jurisdiction of the courts of such the British Virgin
Islands in connection herewith.
31. In these Terms and Conditions words importing the singular
shall include the plural and the masculine gender shall include the
feminine and the neuter and vice versa in each case, and words
importing persons shall include bodies of persons whether corporate or
unincorporate.
32. If any provision of these Terms and Conditions is found to be
invalid or unenforceable to any extent, the other provisions shall
remain valid and enforceable to the fullest extent permitted by law.
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© Elan Corporate Services Ltd., MCMXCVI-MMIV All rights reserved.
Corporate Address: Palm Chambers / P.O. Box 119 / Road Town, Tortola, B.V.I.
Telephone: +1 (284) 494.4590 / Telecopier: +1 (284) 494.2838 / E-mail: elan@elanbvi.com
Please report any problems to: postmaster@elanbvi.com