o | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Title of Each Class | Name of Each Exchange on Which Registered | |
American depositary shares | The NASDAQ Stock Market LLC | |
each representing three ordinary shares | (The NASDAQ Global Select Market) |
o Large accelerated filer | þ Accelerated filer | o Non-accelerated filer |
U.S. GAAP þ | International Financial Reporting Standards as issued by the International Accounting Standards Board o | Other o |
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EX-1.1 AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION | ||||||||
EX-4.32 TERMINATION AGREEMENT | ||||||||
EX 4.37 2006 SHARE INCENTIVE PLAN | ||||||||
EX-4.41 ORDER OF SECRETARY FOR PUBLIC WORKS AND TRANSPORTATION | ||||||||
EX-8.1 LIST OF SUBSIDIARIES | ||||||||
EX-11.1 CODE OF BUSINESS CONDUCT AND ETHICS | ||||||||
EX-12.1 CEO CERTIFICATION PURSUANT TO SECTION 302 | ||||||||
EX-12.2 CFO CERTIFICATION PURSUANT TO SECTION 302 | ||||||||
EX-13.1 CEO CERTIFICATION PURSUANT TO SECTION 906 | ||||||||
EX-13.2 CFO CERTIFICATION PURSUANT TO SECTION 906 | ||||||||
EX-15.1 CONSENT OF WALKERS |
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China, mainland China and PRC are to the Peoples Republic of China, excluding
Hong Kong, Macau and Taiwan;
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Greater China is to mainland China, Hong Kong, Macau and Taiwan, collectively;
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HK$ and H.K. dollars are to the legal currency of Hong Kong;
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Hong Kong is to the Hong Kong Special Administration Region of the Peoples
Republic of China;
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Macau and the Macau SAR are to the Macau Special Administrative Region of the
Peoples Republic of China;
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Patacas and MOP are to the legal currency of Macau;
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Renminbi and RMB are to the legal currency of China;
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US$ and U.S. dollars are to the legal currency of the United States; and
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U.S. GAAP is to the accounting principles generally accepted in the United States.
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1
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satisfaction of and compliance with conditions and covenants under the
US$1.75 billion City of Dreams Project Facility, or City of Dreams Project Facility, to
maintain the facility;
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our ability to raise additional financing;
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our future business development, results of operations and financial condition;
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growth of the gaming market and visitation in Macau;
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our anticipated growth strategies;
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the liberalization of travel restrictions on PRC citizens and convertibility of the
Renminbi;
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the uncertainty of tourist behavior related to spending and vacationing at casino
resorts in Macau;
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fluctuations in occupancy rates and average daily room rates in Macau;
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increased competition and other planned casino hotel and resort projects in Macau
and elsewhere in Asia, including in Macau from Sociedade de Jogos de Macau, S.A, or SJM, Sands
China, Wynn Macau, Galaxy and MGM Grand Paradise;
|
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the formal grant of an occupancy permit for certain areas of City of Dreams that
remain under construction or development;
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obtaining approval from the Macau government for an increase in the developable
gross floor area of the City of Dreams site;
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the development of Macau Studio City;
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our entering into new development and construction and new ventures;
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2
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construction cost estimates for our development projects, including projected
variances from budgeted costs;
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government regulation of the casino industry, including gaming license approvals and
the legalization of gaming in other jurisdictions;
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the completion of
infrastructure projects in Macau; and
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other factors described under Risk Factors.
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Year Ended December 31, | ||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | ||||||||||||||||
(In thousands of US$, except share and per share data and operating data) | ||||||||||||||||||||
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Consolidated
Statements of
Operations Data:
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||||||||||||||||||||
Net revenues
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$ | 1,332,873 | $ | 1,416,134 | $ | 358,496 | $ | 36,101 | $ | 17,328 | ||||||||||
Total operating costs
and expenses
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(1,604,920 | ) | (1,414,960 | ) | (554,313 | ) | (93,754 | ) | (21,050 | ) | ||||||||||
Operating (loss) income
|
$ | (272,047 | ) | $ | 1,174 | $ | (195,817 | ) | $ | (57,653 | ) | $ | (3,722 | ) | ||||||
Net loss
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$ | (308,461 | ) | $ | (2,463 | ) | $ | (178,151 | ) | $ | (73,479 | ) | $ | (3,259 | ) | |||||
Loss per share
|
||||||||||||||||||||
Basic and diluted
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$ | (0.210 | ) | $ | (0.002 | ) | $ | (0.145 | ) | $ | (0.116 | ) | $ | (0.006 | ) | |||||
ADS (1)
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$ | (0.631 | ) | $ | (0.006 | ) | $ | (0.436 | ) | $ | (0.348 | ) | $ | (0.019 | ) | |||||
Shares used in
calculating loss per
share
|
||||||||||||||||||||
Basic and diluted
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1,465,974,019 | 1,320,946,942 | 1,224,880,031 | 633,228,439 | 522,945,205 |
3
December 31, | ||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | ||||||||||||||||
(In thousands of US$) | ||||||||||||||||||||
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||||||||||||||||||||
Consolidated Balance
Sheets Data:
|
||||||||||||||||||||
Cash and cash equivalents
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$ | 212,598 | $ | 815,144 | $ | 835,419 | $ | 583,996 | $ | 19,769 | ||||||||||
Restricted cash
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236,119 | 67,977 | 298,983 | | | |||||||||||||||
Total assets
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4,900,369 | 4,498,289 | 3,620,268 | 2,279,920 | 421,208 | |||||||||||||||
Total current liabilities
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559,167 | 450,136 | 483,685 | 207,613 | 138,741 | |||||||||||||||
Total debts (2)
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1,798,879 | 1,529,195 | 616,376 | 212,506 | 94,577 | |||||||||||||||
Total liabilities
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2,391,325 | 2,089,685 | 1,191,727 | 389,554 | 163,024 | |||||||||||||||
Noncontrolling interests
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| | | | 19,492 | |||||||||||||||
Total equity
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2,509,044 | 2,408,604 | 2,428,541 | 1,890,366 | 258,184 |
(1) |
Each ADS represents three ordinary shares.
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(2) |
Includes amounts due to shareholders within one year, loans from shareholders and
long-term debt.
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From January 1, 2005 to March 7, 2005, the financial statements reflect the
consolidated financial statements of Mocha Slot Group Limited, or Mocha, Melco
Crown (COD) Developments and Altira Developments because they were under common
control for this period. The contributions by Melco of its 80% interest in Mocha,
70% interest in Altira Developments and 50.8% interest in the City of Dreams
project to MPEL (Greater China) Limited, formerly Melco PBL Entertainment (Greater
China) Limited, a company previously 80% indirectly owned by us and 20% owned by
Melco, and cash contributions by Crown of US$163 million, which were completed on
March 8, 2005, were accounted for as the formation of a joint venture for which a
carryover basis of accounting has been adopted.
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In September 2006, we acquired a Macau subconcession. Prior to this date we did
not hold a concession or subconcession to operate gaming activities in Macau and
we operated under a services agreement with SJM.
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In April 2006, we commenced construction of the City of Dreams project.
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On May 12, 2007, Altira Macau opened and became fully operational on July 14, 2007.
|
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On June 1, 2009, City
of Dreams opened featuring a 420,000 sq. ft. casino with
approximately 500 gaming tables and 1,300 gaming machines, as well as
approximately 600 hotel rooms and 20 food and beverage outlets.
|
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In the last quarter of 2009, a further 800 rooms were progressively added to City
of Dreams following grand opening and operations of Grand Hyatt Macau at City of Dreams.
|
4
Noon Buying Rate | ||||||||||||||||
Period | Period End | Average (1) | Low | High | ||||||||||||
(Hong Kong dollar per US$1.00) | ||||||||||||||||
March 2010 (through March 16, 2010)
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7.7606 | 7.7606 | 7.7647 | 7.7574 | ||||||||||||
February 2010
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7.7619 | 7.7670 | 7.7716 | 7.7619 | ||||||||||||
January 2010
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7.7665 | 7.7624 | 7.7752 | 7.7539 | ||||||||||||
December 2009
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7.7536 | 7.7526 | 7.7572 | 7.7495 | ||||||||||||
November 2009
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7.7500 | 7.7497 | 7.7501 | 7.7495 | ||||||||||||
October 2009
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7.7497 | 7.7497 | 7.7502 | 7.7495 | ||||||||||||
September 2009
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7.7500 | 7.7503 | 7.7514 | 7.7498 | ||||||||||||
2009
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7.7536 | 7.7513 | 7.7618 | 7.7495 | ||||||||||||
2008
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7.7499 | 7.7814 | 7.8159 | 7.7497 | ||||||||||||
2007
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7.7984 | 7.8008 | 7.8289 | 7.7497 | ||||||||||||
2006
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7.7771 | 7.7685 | 7.7928 | 7.7506 | ||||||||||||
2005
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7.7533 | 7.7755 | 7.7999 | 7.7514 |
(1) |
Annual averages are calculated from month-end rates. Monthly averages
are calculated using the average of the daily rates during the
relevant period.
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5
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fulfill conditions precedent to draw down or roll over funds from current and future credit facilities;
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raise additional capital, as required;
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respond to changing financing requirements.
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operate, support, expand and develop our operations and our facilities;
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attract and retain customers and qualified employees;
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maintain effective control of our operating costs and expenses;
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develop and maintain internal personnel, systems, controls and procedures to assure compliance with
the extensive regulatory requirements applicable to the gaming business as well as regulatory
compliance as a public company;
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respond to competitive market conditions;
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respond to changes in our regulatory environment;
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identify suitable locations and enter into new leases or right to use agreements (which are similar to
license agreements) for new Mocha Clubs; and
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renew or extend lease
agreements for existing Mocha Clubs.
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6
7
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changes in Macaus and Chinas political, economic and social conditions;
|
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tightening of travel restrictions to Macau which may be imposed by China;
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changes in policies of the government or changes in laws and
regulations, or in the interpretation or enforcement of these laws and
regulations;
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changes in foreign exchange regulations;
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measures that may be introduced to control inflation, such as interest
rate increases or bank account withdrawal controls; and
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changes in the rate or method of taxation.
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8
9
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dependence on the gaming and leisure market in Macau and limited diversification of our businesses and sources of
revenue;
|
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a decline in economic, competitive and political conditions in Macau or generally in Asia;
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inaccessibility to Macau due to inclement weather, road construction or closure of primary access routes;
|
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a decline in air or ferry passenger traffic to Macau due to higher ticket costs, fears concerning travel or otherwise;
|
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travel restrictions to Macau imposed now or in the future by China;
|
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changes in Macau governmental laws and regulations, or interpretations thereof, including gaming laws and regulations;
|
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natural and other disasters, including typhoons, outbreaks of infectious diseases or terrorism, affecting Macau;
|
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that the number of visitors to Macau does not increase at the rate that we have expected; and
|
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a decrease in gaming activities at our properties.
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10
11
12
13
14
15
16
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approximately US$1.75 billion under the City of Dreams Project
Facility primarily for the development and construction of City of
Dreams, of which we have drawn down an amount equivalent to
approximately US$1.68 billion as of the date of this annual report;
and
|
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financing for a significant
portion of the costs of developing Phase II at the City of Dreams site, in an amount which
is as yet undetermined.
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increase our vulnerability to general adverse economic and industry conditions;
|
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impair our ability to obtain additional financing in the future for working capital needs, capital expenditure,
acquisitions or general corporate purposes;
|
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require us to dedicate a significant portion of our cash flow from operations to the payment of principal and
interest on our debt, which would reduce the funds available to us for our operations;
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
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subject us to higher interest expense in the event of increases in interest rates to the extent a portion of our
debt bears interest at variable rates;
|
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cause us to incur additional expenses by hedging interest rate exposures of our debt and exposure to hedging
counterparties failure to pay under such hedging arrangements, which would reduce the funds available for us for
our operations; and
|
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in the event we or one of our subsidiaries were to default, result in the loss of all or a substantial portion of
our and our subsidiaries assets, over which our lenders have taken or will take security.
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incur additional debt, including guarantees;
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create security or liens;
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dispose of assets;
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17
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make certain acquisitions and investments;
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make other restricted payments or apply revenues earned in one part of
our operations to fund development costs or cover operating losses in
another part of our operations;
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enter into sale and leaseback transactions;
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engage in new businesses;
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issue preferred shares; and
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enter into transactions with shareholders and affiliates.
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Consolidated Leverage Ratio, as defined in the City of Dreams Project Facility;
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Consolidated Interest Cover Ratio, as defined in the City of Dreams Project Facility; and
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Consolidated Cash Cover Ratio, as defined in the City of Dreams Project Facility.
|
18
19
20
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lack of sufficient or delays in availability of financing;
|
||
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changes to plans and specifications;
|
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engineering problems, including defective plans and specifications;
|
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shortages of, and price increases in, energy, materials and skilled and unskilled
labor, and inflation in key supply markets;
|
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delays in obtaining or inability to obtain necessary permits, licenses and approvals;
|
||
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changes in laws and regulations, or in the interpretation and enforcement of laws
and regulations, applicable to gaming, leisure, residential, real estate development
or construction projects;
|
||
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labor disputes or work stoppages;
|
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disputes with and defaults by contractors and subcontractors;
|
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environmental, health and safety issues, including site accidents and the spread of
viruses such as H1N1 or H5N1;
|
||
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weather interferences or delays;
|
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fires, typhoons and other natural disasters;
|
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geological, construction, excavation, regulatory and equipment problems; and
|
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other unanticipated circumstances or cost increases.
|
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uncertainties or delays
relating to the financing, completion and successful operation of our
future projects;
|
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developments in the Macau market or other Asian gaming markets, including the announcement or
completion of major new projects by our competitors;
|
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regulatory developments affecting us or our competitors;
|
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actual or anticipated fluctuations in our quarterly operating results;
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21
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changes in financial estimates by securities research analysts;
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changes in the economic performance or market valuations of other gaming and leisure industry companies;
|
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changes in our share of the Macau gaming market;
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addition or departure of our executive officers and key personnel;
|
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fluctuations in the exchange rates between the U.S. dollar, Hong Kong dollar, Pataca and Renminbi;
|
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release or expiry of lock-up or other transfer restrictions on our outstanding ordinary shares or ADSs;
|
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sales or perceived sales of additional ordinary shares or ADSs or securities convertible or
exchangeable or exercisable for ordinary shares or ADSs; and
|
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rumors related to any of the above.
|
22
23
24
25
26
27
28
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create a cross-platform sales and marketing department to promote all
of our brands to potential customers throughout Asia in accordance
with applicable laws;
|
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utilize special product offers, special events, tournaments and
promotions to build and maintain relationships with our guests, in
order to increase repeat visits and help fill capacity during
lower-demand periods;
|
||
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refine our own customer loyalty programs to further build a
significant database of repeat customers, which we closely modeled on
Crowns successful Crown Club program; and
|
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implement complimentary incentive programs and commission based
programs with selected promoters to attract high-end customers.
|
29
Gaming | ||||||||
Mocha Club | Opening Date | Location | Area | |||||
(in sq. ft.) | ||||||||
Mocha Altira
|
December 2008 | Level 1 of Altira Macau | 4,200 | |||||
Mocha Square
|
October 2007 | 1/F, 2/F and 3/F of Mocha Square | 6,000 | |||||
Marina Plaza
|
December 2006 | 1/F and 2/F of Marina Plaza | 12,500 | |||||
Hotel Taipa
|
January 2006 | G/F of Hotel Taipa | 6,100 | |||||
Sintra
|
November 2005 | G/F and 1/F of Hotel Sintra | 5,110 | |||||
Taipa Square
|
March 2005 | G/F, 1/F and 2/F of Hotel Taipa Square | 14,500 | |||||
Kingsway
|
April 2004 | G/F of Kingsway Commercial Centre | 6,100 | |||||
Royal
|
September 2003 | Lobby and 1/F of Hotel Royal | 8,500 | |||||
|
||||||||
|
||||||||
Total
|
63,010 | |||||||
|
30
31
32
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the prevention of unsavory or unsuitable persons from having a direct
or indirect involvement with gaming at any time or in any capacity;
|
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the adequate operation and exploitation of games of fortune and chance;
|
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the fair and honest operation and exploitation of games of fortune and chance free of criminal influence;
|
||
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the protection of the Macau SAR interest in receiving the taxes resulting from the gaming operation; and
|
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the development of the tourism industry, social stability and economic development of the Macau SAR.
|
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pay that person any dividend or interest upon our shares;
|
||
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allow that person to exercise, directly or indirectly, any voting right conferred through shares held by that person;
|
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pay remuneration in any form to that person for services rendered or otherwise; or
|
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fail to pursue all lawful efforts to require that unsuitable person to relinquish his or her shares.
|
33
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a percentage of the gross revenues received; or
|
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the number and type of gaming devices operated.
|
34
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identify any customer or transaction where there is a sign of money
laundering or financing of terrorism or which involves significant
sums of money in the context of the transaction, even if any sign of
money laundering is absent;
|
||
|
refuse to deal with any of our customers who fail to provide any information requested by us;
|
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keep records following the identification of a customer for a period of five years;
|
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notify the Finance Information Bureau if there is any sign of money laundering or financing of terrorism; and
|
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cooperate with the Macau government by providing all required
information and documentation requested in relation to anti-money
laundering activities.
|
35
|
the operation of gaming without permission or operation of business
which does not fall within the business scope of the subconcession;
|
||
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abandonment of approved business or suspension of operations of our
gaming business in Macau without reasonable grounds for more than
seven consecutive days or more than 14 non-consecutive days within one
calendar year;
|
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transfer of all or part of Melco Crown Gamings operation in Macau in
violation of the relevant laws and administrative regulations
governing the operation of games of fortune or chance and other casino
games in Macau and without Macau government approval;
|
||
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failure to pay taxes, premiums, levies or other amounts payable to the Macau government;
|
||
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refusal or failure to resume operations following the temporary
assumption of operations by the Macau government;
|
||
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repeated opposition to the supervision and inspection by the Macau
government and failure to comply with decisions and recommendations of
the Macau government, especially those of the DICJ, applicable to us;
|
||
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failure to provide or supplement the guarantee deposit or the
guarantees specified in the subconcession within the prescribed
period;
|
||
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bankruptcy or insolvency of Melco Crown Gaming;
|
||
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fraudulent activity harming the public interest;
|
||
|
serious and repeated violation of the applicable rules for carrying
out casino games of chance or games of other forms or damage to the
fairness of casino games of chance or games of other forms;
|
||
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systematic non-compliance with the Macau Gaming Laws basic obligations;
|
||
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the grant to any other person of any managing power over the gaming
business of Melco Crown Gaming or the grant of a subconcession or
entering into any agreement to the same effect; or
|
||
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failure by a controlling shareholder in Melco Crown Gaming to dispose
of its interest in Melco Crown Gaming, within 90 days, following
notice from the gaming authorities of another jurisdiction in which
such controlling shareholder is licensed to operate casino games of
chance to the effect that such controlling shareholder no longer
wishes to own shares in Melco Crown Gaming.
|
36
37
38
1. |
In respect of shares of each Macau subsidiary shown above, the shares are owned as to 96% by Melco
Crown Gaming (Macau) Limited and 4% by MPEL Nominee Two Limited, except for the subsidiary referred to in footnote 2 below.
|
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2. |
The shares of this company are owned as to 99.98% by Melco Crown Gaming (Macau)
Limited, 0.01% by MPEL Nominee Three Limited and 0.01% by MPEL Nominee Two Limited.
|
39
40
Year Ended December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(in thousands of US$) | ||||||||||||
Net revenues
|
$ | 1,332,873 | $ | 1,416,134 | $ | 358,496 | ||||||
Total operating costs and expenses
|
(1,604,920 | ) | (1,414,960 | ) | (554,313 | ) | ||||||
Operating (loss) income
|
(272,047 | ) | 1,174 | (195,817 | ) | |||||||
|
||||||||||||
Net loss
|
$ | (308,461 | ) | $ | (2,463 | ) | $ | (178,151 | ) |
|
On June 1, 2009, City of Dreams opened featuring a 420,000 sq. ft. casino with
approximately 500 gaming tables and 1,300 gaming machines, as well as
approximately 600 hotel rooms and 20 food and beverage outlets.
|
||
|
Following construction completion of Grand Hyatt Macau at City of Dreams in
December 2009, a further 800 rooms were added.
|
||
|
On May 12, 2007, Altira Macau opened and was fully operational by July 14, 2007.
|
|
Table games win
: the amount of wagers won net of wagers lost that is retained and recorded as casino revenue.
|
||
|
Drop
: the amount of cash and net markers issued that are deposited in
a gaming tables drop box to purchase gaming chips plus gaming chips
purchased at the casino cage.
|
||
|
Gaming machine handle (volume)
: the total amount wagered in gaming
machines in aggregate for the period cited.
|
||
|
Win percentage-gaming machines
: actual win expressed as a percentage of gaming machine handle.
|
||
|
Hold percentage
: the amount of win (calculated before discounts and commissions) as a percentage of drop.
|
||
|
Expected hold percentage
: casino win based upon our mix of games as a
percentage of drop assuming theoretical house advantage is achieved.
|
41
|
Rolling chip volume
: the amount of non-negotiable gaming chips
wagered and lost by the VIP market segment, therefore tracking the sum
of all losing wagers.
|
||
|
Rolling chip hold percentage
: VIP table games win as a percentage of rolling chip volume.
|
||
|
Non-rolling chip volume
: the amount of table games drop in the mass
market segment, therefore tracking the initial purchase of chips.
|
||
|
Non-rolling chip hold percentage
: Mass market table games win as a percentage of non-rolling chip volume.
|
|
Average Daily Rate, or ADR:
calculated by dividing total room revenue
(less service charges, if any) by total rooms occupied, i.e., average
price of occupied rooms per day.
|
||
|
Hotel occupancy rate
: the average percentage of available hotel rooms occupied during a period
|
||
|
Revenue per Available Room, or REVPAR:
calculated by dividing total
room revenue (less service charges, if any) by total rooms available,
thereby representing a summary of hotel average daily room rates and
occupancy.
|
42
43
44
45
46
47
48
Year Ended December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(in thousands of US$) | ||||||||||||
Net cash (used in) provided by operating activities
|
$ | (112,257 | ) | $ | (11,158 | ) | $ | 147,372 | ||||
Net cash used in investing activities
|
(1,143,639 | ) | (913,602 | ) | (972,620 | ) | ||||||
Net cash provided by financing activities
|
653,350 | 904,485 | 1,076,671 | |||||||||
|
||||||||||||
|
||||||||||||
Net (decrease) increase in cash and cash equivalents
|
(602,546 | ) | (20,275 | ) | 251,423 | |||||||
Cash and cash equivalents at beginning of year
|
815,144 | 835,419 | 583,996 | |||||||||
|
||||||||||||
|
||||||||||||
Cash and cash equivalents at end of year
|
$ | 212,598 | $ | 815,144 | $ | 835,419 | ||||||
|
49
|
cashflow generated from the operations of our existing businesses;
|
||
|
borrowings under the US$1.75 billion City of Dreams Project Facility; and
|
||
|
a portion of the net proceeds from our initial offering and our
follow-on offering in December 2006 and November 2007 respectively.
|
50
51
|
a first priority mortgage over all land and all present and future
buildings on and fixtures to such land, and an assignment of land use
rights under land concession agreements or equivalent held by the
relevant entities in the Borrowing Group;
|
||
|
the letters of credit described above in Description of Our
IndebtednessCity of Dreams Project FacilityMelco and Crown Support;
|
||
|
charges over the bank accounts in respect of the Borrowing Group;
|
||
|
assignment of the Borrowing Groups rights under certain insurance policies;
|
||
|
first priority security over the Borrowing Groups chattels,
receivables and other assets which are not subject to any security
under any other security documentation;
|
||
|
pledge over equipment and tools used in the gaming business by Melco Crown Gaming; and
|
||
|
first priority charges over the issued share capital of the Borrowing Group.
|
|
create or permit to subsist further charge or any form of encumbrance
over its assets, property or revenues except as permitted under the
City of Dreams Project Facility;
|
||
|
sell, transfer or dispose of any of its assets unless such sale is
conducted on an arms length basis at a fair market value permitted in
accordance with the terms of the City of Dreams Project Facility and
the proceeds from the sale shall be credited to the relevant accounts
over which the lenders have a first priority charge on;
|
||
|
make any payment of fees under any agreement with Melco or Crown (or
their affiliates) other than fees approved by the Majority Lenders or,
after a certain date, in accordance with the waterfall, or enter into
agreements with Melco or Crown or their affiliates except in certain
limited circumstances;
|
||
|
make any loan or guarantee indebtedness except for certain identified indebtedness and guarantees permitted;
|
||
|
create any subsidiaries except as permitted under the City of Dreams
Project Facility, such as those necessary for completion and operation
of City of Dreams; or
|
||
|
make investments other than within agreed upon limitations.
|
52
|
Consolidated Leverage Ratio, as defined in the City of Dreams Project
Facility, cannot exceed 4.50 to 1 for the reporting periods ending
September 30, 2010, December 31, 2010, March 31, 2011 and June 30,
2011, cannot exceed 4.00 to 1 for the reporting periods ending
September 30, 2011, December 31, 2011 and March 31, 2012, and cannot
exceed 3.75 to 1 for the reporting periods ending June 30, 2012
onwards;
|
||
|
Consolidated Interest Cover Ratio, as defined in the City of Dreams
Project Facility, must be greater than or equal to 2.50 to 1 for the
reporting periods ending September 30, 2010, December 31, 2010 and
March 31, 2011, and must be greater than or equal to 3.00 to 1 for the
reporting periods ending June 30, 2011 onwards; and
|
||
|
Consolidated Cash Cover Ratio, as defined in the City of Dreams
Project Facility, must be greater than or equal to 1.10 to 1 for the
reporting periods ending September 30, 2010 onwards.
|
53
Payments due by period | ||||||||||||||||||||
Less than | 1-3 | 3-5 | More than | |||||||||||||||||
1 year | years | years | 5 years | Total | ||||||||||||||||
(in millions of US$) | ||||||||||||||||||||
Contractual obligations
|
||||||||||||||||||||
Long-term debt obligations:
|
||||||||||||||||||||
Loans from shareholders (1)
|
$ | | 115.6 | | | 115.6 | ||||||||||||||
Other long-term debt (2)
|
44.5 | 793.1 | 845.6 | | 1,683.2 | |||||||||||||||
Operating lease obligations:
|
||||||||||||||||||||
Leases for office space, VIP lounge,
recruitment and training center, staff
quarter and Mocha Clubs locations
|
10.0 | 11.6 | 9.0 | 9.7 | 40.3 | |||||||||||||||
Other contractual commitments:
|
||||||||||||||||||||
Government land use fees payable for Altira Macau
land (3)
|
0.2 | 0.3 | 0.3 | 2.8 | 3.6 | |||||||||||||||
Government land use fees payable for City of
Dreams land (4)
|
1.2 | 2.4 | 2.4 | 22.0 | 28.0 | |||||||||||||||
Interest on land premium for City of Dreams
land (4)
|
1.1 | 2.8 | 0.2 | | 4.1 | |||||||||||||||
Construction, plant and equipment
acquisition commitments (5)
|
32.6 | | | | 32.6 | |||||||||||||||
Buses and limousines services commitments
|
2.6 | | | | 2.6 | |||||||||||||||
Fixed premium on gaming subconcession
|
3.7 | 7.5 | 7.5 | 28.0 | 46.7 | |||||||||||||||
Trademark and memorabilia license fee
commitments
|
0.9 | 1.8 | 1.8 | 4.0 | 8.5 | |||||||||||||||
Consultancy and other services commitments
|
2.7 | 1.3 | 0.8 | | 4.8 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total contractual obligations
|
$ | 99.5 | 936.4 | 867.6 | 66.5 | 1,970.0 | ||||||||||||||
|
(1) |
Excludes the working capital loans provided by Melco and Crown, which had an outstanding balance of US$25,000 as of
December 31, 2009. As of December 31, 2009, the balance of the outstanding term loans from Melco and Crown, amounting to
approximately US$115.6 million was repayable in May 2011. The term loan from Melco as of December 31, 2009 is bearing
interest at 3-months HIBOR per annum and at three months HIBOR plus
1.5% per annum only during the period from May 16, 2008 to
May 15, 2009. The term loan from Crown as of December 31,
2009 bearing interest at 3-months
HIBOR.
|
54
(2) |
Other long-term debt represents US$1.75 billion under the City of
Dreams Project Facility. The City of Dreams Project Facility consists
of a US$1.5 billion term loan facility and a US$250 million revolving
credit facility. The term loan facility matures in September 2014 and
is subject to quarterly amortization payments commencing in
December 2010. The revolving credit facility matures in September
2012 or, if earlier, the date of repayment, prepayment or cancellation
in full of the term loan facility and has no interim amortization
payment.
|
|
(3) |
Annual government land use fees payable is approximately MOP 1.4 million
(US$171,000) and is adjusted every five years as agreed between the
Macau government and Altira Developments in accordance with the
applicable market rates from time to time.
|
|
(4) |
In April 2005, the Macau government offered to grant a medium-term
lease of 25 years for City of Dreams to Melco Crown
(COD) Developments, and Melco Crown (COD) Developments preliminarily
accepted the offer on May 10, 2005. In February 2008, Melco Crown
(COD) Developments and Melco Crown Gaming accepted the final terms of
the land lease agreement, which required us to pay a land premium of
approximately MOP 842.1 million (US$105.1 million). We paid MOP
300.0 million (US$37.4 million) of the land premium upon our
acceptance of the final terms on February 11, 2008. On August 13, 2008
the Macau government formally granted the land concession to Melco
Crown (COD) Developments of which approximately MOP 467.5 million
(US$58.3 million) has been paid as of December 31, 2009 and the
remaining amount of approximately MOP 374.6 million (US$46.8 million), accrued with 5%
interest per annum, will be paid in
six biannual installments. In November 2009, Melco Crown (COD)
Developments and Melco Crown Gaming accepted in principle the initial
terms for the revision of the land lease agreement from the Macau
government for the increased developable gross floor area for City of
Dreams and recognized additional land premium of approximately MOP
257.4 million (US$32.1 million) payable to the Macau government. In March 2010, Melco Crown (COD)
Developments and Melco Crown Gaming accepted the final terms for the
revision of the land lease agreement and
fully paid the additional land premium to the Macau government. The total outstanding
balances of
the land use right has been included in accrued expenses and other
current liabilities and land use right payable as of December 31,
2009. We have also provided a guarantee deposit of approximately
MOP 3.4 million (US$424,000), upon signing of the government lease in February
2008. According to the terms of the revised offer from the Macau
government, payment in the form of government land use fees in an aggregate
amount of approximately MOP 9.5 million (US$1.2 million) per annum is
payable to Macau government and such amount may be adjusted every five
years as agreed between the Macau government and Melco Crown
(COD) Developments in accordance with the market rates from time to
time.
|
|
(5) |
The amount as of December 31, 2009 mainly represents construction
contracts for the design and construction, plant and equipment
acquisitions of City of Dreams of approximately US$31.4 million.
The balance includes the remaining payment obligations for Altira
Macau and Mocha Clubs.
|
55
56
57
58
59
60
61
62
63
64
Name
Age
Position/Title
33
Co-Chairman and Chief Executive Officer
42
Co-Chairman
49
Director
47
Director
42
Director
54
Director
56
Independent Director
37
Independent Director
60
Independent Director
45
Independent Director
40
Chief Financial Officer
47
Executive Vice President and Chief Legal Officer
56
Executive Vice President and Chief Internal Audit Officer
56
Executive Vice President and Chief Human
Resources/Corporate Social Responsibility Officer
49
Executive Vice President and Chief Development Officer
46
President of City of Dreams
38
President of Altira Macau
36
President of Mocha Clubs
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
December 31,
2009
2008
2007
Number of
Percentage
Number of
Percentage
Number of
Percentage
Employees
of Total
Employees
of Total
Employees
of Total
757
7.8
%
615
12.8
%
545
11.1
%
2,753
28.6
3,540
73.7
4,201
85.2
5,718
59.4
317
6.6
83
1.7
403
4.2
331
6.9
99
2.0
9,631
100
%
4,803
100
%
4,928
100
%
Table of Contents
Number of
Exercise
unvested
price/grant date
share options
fair value per
/ restricted
Vesting
ADS
shares
Period
$14.15$15.19
335,181
4 to 5 years
$12.04$14.08
373,101
4 years
$3.04
13,002,339
3 years
$4.28
3,612,327
4 years
$3.04$3.26
4,654,500
4 years
21,977,448
$3.99$12.04
434,794
3 to 4 years
$3.04
2,167,059
3 years
$3.26
644,178
4 years
3,246,031
Table of Contents
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
F - 1
F - 2
F - 3
F - 4
F - 5
F - 6
F - 7
F - 8
F - 9
F - 10
F - 11
F - 12
F - 13
F - 14
F - 15
F - 16
F - 17
F - 18
F - 19
F - 20
F - 21
F - 22
F - 23
F - 24
F - 25
F - 26
F - 27
F - 28
F - 29
F - 30
F - 31
F - 32
F - 33
F - 34
F - 35
F - 36
F - 37
F - 38
F - 39
F - 40
F - 41
F - 42
Ordinary shares beneficially
owned (1)
Name
Number
%
533,750,000
33.45
533,750,000
33.45
(1)
(2)
(3)
(4)
(5)
Table of Contents
Table of Contents
Table of Contents
Year Ended December 31,
2009
2008
2007
(in thousands of US$)
$
211
$
597
$
65
1,312
246
2,294
1,301
1,168
4,150
45
1,698
28
52
238
2,354
1,466
1,114
257
255
707
1,442
59,482
16,327
12,141
87
655
41
748
781
65
66
2,809
1,387
746
896
276
23
100
41
2,788
963
3,367
4,167
215
758
(a)
Table of Contents
(b)
Table of Contents
(c)
(d)
Table of Contents
Table of Contents
Sales Price
High
Low
4.97
4.05
4.17
3.30
4.35
3.32
4.67
3.26
5.37
4.02
7.35
4.95
8.45
5.62
4.97
3.30
7.35
3.26
8.45
4.05
6.60
3.29
4.65
2.27
4.89
2.31
9.63
3.77
14.76
9.00
13.23
8.20
8.45
2.27
14.76
2.31
22.34
9.95
23.55
18.88
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Year Ended
December 31,
2009
2008
(In thousands of US$)
$
1,070
$
1,356
75
139
69
24
400
(1)
(2)
(3)
(4)
Table of Contents
Exhibit
Number
Description of Document
1.1
*
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
4.1
4.2
4.3
4.4
Table of Contents
Exhibit
Number
Description of Document
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
Table of Contents
Exhibit
Number
Description of Document
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
Table of Contents
Exhibit
Number
Description of Document
4.27
4.28
4.29
4.30
4.31
4.32
*
4.33
4.34
4.35
4.36
4.37
*
4.38
4.39
Table of Contents
Exhibit
Number
Description of Document
4.40
4.41
*
8.1
*
11.1
*
12.1
*
12.2
*
13.1
*
13.2
*
15.1
*
*
Table of Contents
For the years ended December 31, 2009, 2008 and 2007
Report of Independent Registered Public Accounting Firm
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2009, 2008 and 2007
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-9
F-38
Table of Contents
Certified Public Accountants
Hong Kong
March 31, 2010
Table of Contents
Certified Public Accountants
Hong Kong
March 31, 2010
Table of Contents
December 31,
2009
2008
$
212,598
$
815,144
236,119
67,977
299,700
72,755
1
650
6,534
2,170
19,768
17,556
774,720
976,252
2,786,646
2,107,722
713,979
771,216
4,220
4,220
81,915
81,915
52,365
60,894
28
38,948
49,336
12,853
447,576
433,853
$
4,900,369
$
4,498,289
$
8,719
$
2,494
497,767
442,671
768
1,954
44,504
7,384
1,985
25
1,032
559,167
450,136
1,638,703
1,412,516
20,619
38,304
17,757
19,191
115,647
115,647
39,432
53,891
(Authorized 2,500,000,000 and 1,500,000,000 shares and issued 1,595,617,550
and 1,321,550,399 shares as of December 31, 2009 and 2008 (Note 13))
15,956
13,216
(471,567 and 385,180 shares as of December 31, 2009 and 2008 (Note 13))
(5
)
(4
)
3,088,768
2,689,257
(29,034
)
(35,685
)
(566,641
)
(258,180
)
2,509,044
2,408,604
$
4,900,369
$
4,498,289
Table of Contents
Table of Contents
Table of Contents
Table of Contents
(In thousands of U.S. dollars)
Year Ended December 31,
2009
2008
2007
$
(27,978
)
$
(181
)
$
(596
)
$
(2,457
)
$
$
$
91,648
$
246,998
$
132,356
$
22,462
$
$
41,680
$
4,427
$
1,562
$
1,598
$
$
(2,788
)
$
$
$
1,427
$
575
$
6,914
$
$
Table of Contents
1.
2.
(a)
(b)
(c)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(d)
(e)
(f)
(g)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(h)
Classification
Estimated useful life
2 to 7 years
3 to 5 years
10 years or over the lease term, whichever is shorter
5 years
(i)
(j)
(k)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(l)
(m)
(n)
(o)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(o)
Year Ended December 31,
2009
2008
2007
$
6,778
$
4,240
$
903
17,296
9,955
7,029
3,448
$
27,522
$
14,195
$
7,932
(p)
(q)
(r)
(s)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(t)
(u)
(v)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(w)
Year Ended December 31,
2009
2008
2007
1,465,974,019
1,320,946,942
1,224,880,031
1,465,974,019
1,320,946,942
1,224,880,031
(x)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
2.
(y)
December 31,
2009
2008
$
(956
)
$
(945
)
(28,078
)
(34,740
)
$
(29,034
)
$
(35,685
)
(z)
(aa)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
3.
December 31,
2009
2008
$
320,789
$
78,649
2,457
1,647
681
572
$
323,927
$
80,868
(24,227
)
(8,113
)
$
299,700
$
72,755
4.
December 31,
2009
2008
$
2,219,127
$
312,007
307,305
77,289
114,983
69,104
97,188
36,770
3,375
1,502
$
2,741,978
$
496,672
(249,780
)
(107,847
)
$
2,492,198
$
388,825
294,448
1,718,897
$
2,786,646
$
2,107,722
5.
December 31,
2009
2008
$
900,000
$
900,000
(186,021
)
(128,784
)
$
713,979
$
771,216
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
5.
6.
7.
8.
December 31,
2009
2008
$
141,543
$
141,543
376,021
343,903
517,564
485,446
(69,988
)
(51,593
)
$
447,576
$
433,853
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
8.
9.
December 31,
2009
2008
$
80,668
$
246,998
50,829
9,808
136,774
54,758
53,294
32,699
67,376
42,038
29,781
13,763
67,701
42,607
11,344
$
497,767
$
442,671
10.
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
10.
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
10.
Year ending December 31,
$
44,504
267,024
526,102
385,702
459,875
1,683,207
(44,504
)
$
1,638,703
11.
December 31,
2009
2008
$
16,727
$
34,733
3,613
3,371
279
200
$
20,619
$
38,304
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
12.
Quoted Prices
In Active
Significant
Market for
Other
Significant
Balance
Identical
Observable
Unobservable
as of
Assets
Inputs
Inputs
December 31,
(Level 1)
(Level 2)
(Level 3)
2009
$
$
28,071
$
$
28,071
13.
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
13.
14.
Year Ended December 31,
2009
2008
2007
$
190
$
$
731
892
1,301
921
892
1,301
$
2
$
$
351
(239
)
353
(239
)
$
(1,537
)
$
(2,038
)
$
(2,812
)
131
(85
)
57
(1,406
)
(2,123
)
(2,755
)
$
(132
)
$
(1,470
)
$
(1,454
)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
14.
Year Ended December 31,
2009
2008
2007
$
(308,593
)
$
(3,933
)
$
(179,605
)
12
%
12
%
12
%
(37,031
)
(472
)
(21,553
)
235
126
641
353
(239
)
(633
)
(1,102
)
(2,671
)
2,978
779
1,048
(8,855
)
15,639
20,045
18,327
8,293
1,036
$
(132
)
$
(1,470
)
$
(1,454
)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
14.
December 31,
2009
2008
$
33,085
$
16,088
28
33,085
16,116
(7,311
)
(1,330
)
(25,774
)
(14,758
)
(33,085
)
(16,088
)
$
$
28
$
(17,149
)
$
(18,686
)
(505
)
(505
)
(103
)
$
(17,757
)
$
(19,191
)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
15.
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
15.
December 31,
2009
2008
2007
74.60
%
57.65
%
38.26
%
1.45
%
1.67
%
3.96
%
5.5
4.7
5.2
Weighted-
Weighted-
Average
Number
Average
Remaining
Aggregate
of Share
Exercise
Contractual
Intrinsic
Options
Price per Share
Term
Value
3,908,390
$
5.02
(191,514
)
$
5.06
3,716,876
$
5.02
20,558,343
$
1.83
(2,003,178
)
$
4.34
(1,795
)
$
5.06
22,270,246
$
2.14
4,792,536
$
1.07
3,612,327
$
1.43
(2,809,419
)
$
1.93
(104,738
)
$
4.58
(5,418,554
)
$
4.39
22,342,398
$
1.26
8.8
$
1,600
364,950
$
4.62
7.9
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
15.
Vested
Weighted-
Weighted-
Average
Number
Average
Remaining
Aggregate
of Share
Exercise
Contractual
Intrinsic
Options
Price per Share
Term
Value
($4.01 - $5.06) (Note)
364,950
$
4.62
7.9
Expected to Vest
Weighted-
Weighted-
Average
Number
Average
Remaining
Aggregate
of Share
Exercise
Contractual
Intrinsic
Options
Price per Share
Term
Value
($1.01 - $5.06)
21,977,448
$
1.21
8.8
$
1,600
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
15.
Number of
Weighted-
Restricted
Average Grant
Shares
Date Fair Value
2,532,010
$
6.33
(395,256
)
6.33
(130,310
)
6.33
2,006,444
$
6.33
6,529,844
1.30
(226,317
)
6.33
(771,895
)
5.88
7,538,076
$
2.02
7,071,741
1.09
(10,825,445
)
1.61
(538,341
)
1.61
3,246,031
$
1.41
Year Ended December 31,
2009
2008
2007
$
5,169
$
2,598
$
518
6,638
4,420
4,828
11,807
7,018
5,346
(422
)
(163
)
(90
)
$
11,385
$
6,855
$
5,256
16.
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
17.
18.
(a)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
18.
(b)
Year ending December 31,
$
10,013
6,306
5,318
5,182
3,853
9,667
$
40,339
Year ending December 31,
$
8,293
8,287
7,793
7,185
7,182
4,590
$
43,330
(c)
i)
ii)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
18.
(c)
iii)
iv)
v)
vi)
vii)
(d)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
18.
(e)
19.
Year Ended December 31,
2009
2008
2007
$
211
$
597
$
65
1,312
246
2,294
1,301
1,168
4,150
45
1,698
28
52
238
2,354
1,466
1,114
257
255
707
1,442
59,482
16,327
12,141
87
655
41
748
781
65
66
2,809
1,387
746
896
276
23
100
41
2,788
963
3,367
4,167
215
758
(a)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
19.
(b)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
19.
(b)
(c)
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
19.
(c)
(d)
20.
December 31,
2009
2008
$
144,455
$
166,241
594,743
617,383
3,093,310
2,117,951
1,067,861
1,596,714
$
4,900,369
$
4,498,289
Year Ended December 31,
2009
2008
2007
$
11,448
$
15,491
$
13,297
6,712
6,275
203,845
808,424
1,148,098
519,522
2,152
21,334
4,219
$
828,736
$
1,191,198
$
740,883
Table of Contents
(In thousands of U.S. dollars, except share and per share data)
20.
(1)
Table of Contents
BALANCE SHEETS
(In thousands of U.S. dollars, except share and per share data)
December 31,
2009
2008
$
34,358
$
163,014
64,676
580,423
12,605
720
111,639
744,157
2,697,541
1,967,503
1,178
1,715
$
2,810,358
$
2,713,375
$
3,302
$
4,907
387
1,296
1,620
1,553
180,336
180,336
22
1,032
185,667
189,124
115,647
115,647
(Authorized 2,500,000,000 and 1,500,000,000 shares and issued 1,595,617,550
and 1,321,550,399 shares as of December 31, 2009 and 2008 (Note 13))
15,956
13,216
(471,567 and 385,180 shares as of December 31, 2009 and 2008 (Note 13)
(5
)
(4
)
3,088,768
2,689,257
(29,034
)
(35,685
)
(566,641
)
(258,180
)
2,509,044
2,408,604
$
2,810,358
$
2,713,375
Table of Contents
FINANCIAL INFORMATION OF PARENT COMPANY
STATEMENTS OF OPERATIONS
(In thousands of U.S. dollars, except share and per share data)
Year Ended December 31,
2009
2008
2007
$
$
$
(21,089
)
(22,115
)
(16,323
)
(21,089
)
(22,115
)
(16,323
)
(21,089
)
(22,115
)
(16,323
)
96
5,755
11,159
(215
)
(758
)
(115
)
(409
)
5,138
15,127
18,291
16,106
(301,368
)
(3,866
)
(192,296
)
(286,475
)
19,771
(160,651
)
(307,564
)
(2,344
)
(176,974
)
(897
)
(119
)
(1,177
)
$
(308,461
)
$
(2,463
)
$
(178,151
)
Table of Contents
FINANCIAL INFORMATION OF PARENT COMPANY
STATEMENTS OF SHAREHOLDERS EQUITY
(In thousands of U.S. dollars, except share and per share data)
Table of Contents
STATEMENTS OF CASH FLOWS
(In thousands of U.S. dollars)
Table of Contents
FINANCIAL INFORMATION OF PARENT COMPANY
NOTES TO FINANCIAL STATEMENTS SCHEDULE 1
(In thousands of U.S. dollars, except share and per share data)
1.
2.
Table of Contents
MELCO CROWN ENTERTAINMENT LIMITED
/s/ Lawrence Ho
Title: Co-Chairman and Chief Executive Officer
Table of Contents
Exhibit
Number
Description of Document
1.1
*
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
4.1
4.2
4.3
4.4
4.5
Table of Contents
Exhibit
Number
Description of Document
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
Table of Contents
Exhibit
Number
Description of Document
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
4.27
4.28
Table of Contents
Exhibit
Number
Description of Document
4.29
4.30
4.31
4.32
*
4.33
4.34
4.35
4.36
4.37
*
4.38
4.39
4.40
4.41
*
8.1
*
11.1
*
Table of Contents
Exhibit
Number
Description of Document
12.1
*
12.2
*
13.1
*
13.2
*
15.1
*
*
The Name of the Company
|
1 | |||
|
||||
The Registered Office of the Company
|
1 | |||
|
||||
The Objects for which the Company is established
|
1 | |||
|
||||
The Liability of Each Member
|
1 | |||
|
||||
The Authorized Share Capital of the Company
|
1 |
Table A
|
1 | |||
|
||||
Interpretation
|
1 | |||
|
||||
Preliminary
|
6 | |||
|
||||
Share capital
|
6 | |||
|
||||
Issue of Shares
|
6 | |||
|
||||
Register Of Members And Share Certificates
|
6 | |||
|
||||
Transfer Of Shares
|
7 | |||
|
||||
Redemption And Purchase Of Own Shares
|
8 | |||
|
||||
Compulsory Redemption
|
8 | |||
|
||||
Variations Of Rights Attaching To Shares
|
9 | |||
|
||||
Commission On Sale Of Shares
|
9 | |||
|
||||
Non-Recognition Of Trusts
|
9 | |||
|
||||
Fractional Shares
|
9 | |||
|
||||
Lien On Shares
|
9 | |||
|
||||
Calls On Shares
|
10 | |||
|
||||
Forfeiture Of Shares
|
10 | |||
|
||||
Registration Of Empowering Instruments
|
11 | |||
|
||||
Transmission Of Shares
|
11 | |||
|
||||
Alteration Of Capital
|
11 | |||
|
||||
Closing Register Of Members Or Fixing Record Date
|
12 | |||
|
||||
General Meetings
|
12 | |||
|
||||
Notice Of General Meetings
|
13 | |||
|
||||
Proceedings At General Meetings
|
13 | |||
|
||||
Votes Of Members
|
14 | |||
|
||||
Corporations Acting By Representatives At Meetings
|
15 | |||
|
||||
Clearing Houses
|
15 | |||
|
||||
Directors
|
15 | |||
|
16
16
16
17
17
18
19
19
20
20
20
21
21
21
22
22
23
23
23
23
24
24
1. |
The name of the Company is
MELCO CROWN ENTERTAINMENT LIMITED.
|
|
2. |
The Registered Office of the Company shall be at the offices of
Walkers Corporate Services
Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9002, Cayman Islands
,
Grand Cayman, Cayman Islands, or at such other place as the Directors may from time to time
decide.
|
|
3. |
The objects for which the Company is established are unrestricted and the Company shall have
full power and authority to carry out any object not prohibited by any law as provided by
Section 7(4) of the Companies Law (as amended).
|
|
4. |
The liability of each Member is limited to the amount, if any, unpaid on such Members
shares.
|
|
5. |
The authorized share capital of the Company is US$25,000,000 divided into 2,500,000,000
ordinary shares of a nominal or par value of US$0.01 each. The Company has the power to
redeem or purchase any of its shares and to sub-divide or consolidate the said shares or any
of them subject to the provisions of the Companies Law (as amended) and the Articles of
Association and to issue all or any part of its capital, whether original, redeemed, increased
or reduced with or without any preference, priority or special privilege or subject to any
postponement of rights or to any conditions or restrictions and so that unless the conditions
of issue shall otherwise expressly declare every issue of shares whether declared to be
preference or otherwise shall be subject to the powers hereinbefore contained.
|
|
6. |
The Company shall have and be capable of exercising all the functions of a natural person of
full capacity irrespective of any question of corporate benefit as provided by Section 27(2)
of the Companies Law (as amended).
|
|
7. |
The Company may exercise the power contained in Section 226 of the Companies Law (as amended)
to deregister in the Cayman Islands and be registered by way of continuation in some other
jurisdiction.
|
1
8. |
Nothing in the preceding sections shall be deemed to permit the Company to carry on the
business of a Bank or Trust Company without being licensed in that behalf under the provisions
of the Banks and Trust Companies Law (as amended), or to carry on Insurance Business from
within the Cayman Islands or the business of an Insurance Manager, Agent, Sub-agent or Broker
without being licensed in that behalf under the provisions of the Insurance Law (as amended),
or to carry on the business of Company Management without being licensed in that behalf under
the provisions of the Companies Management Law (as amended).
|
|
9. |
The Company will not trade in the Cayman Islands with any person, firm or corporation except
in furtherance of the business of the Company carried on outside the Cayman Islands; provided
that nothing in this section shall be construed as to prevent the Company effecting and
concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the
carrying on of its business outside the Cayman Islands.
|
|
10. |
Capitalised terms that are not defined in this Amended and Restated Memorandum of Association
bear the same meaning as those given in the Articles of Association of the Company, as amended
from time to time.
|
2
1. |
In these Articles, unless otherwise defined, the defined terms shall have the meanings
assigned to them as follows:
|
1
2
(a) |
passed by a simple majority of such Members as, being entitled
to do so, vote in person or, where proxies are allowed, by proxy at a general
meeting of the Company and where a poll is taken regard shall be had in
computing a majority to the number of votes to which each Member is entitled;
or
|
||
(b) |
approved in writing by all of the Members entitled to vote at
a general meeting of the Company in one or more instruments each signed by one
or more of the Members and the effective date of the resolution so adopted
shall be the date on which the instrument, or the last of such instruments if
more than one, is executed;
|
3
4
(a) |
passed by a majority of not less than two-thirds of such
Members as, being entitled to do so, vote in person or, where proxies are
allowed, by proxy at a general meeting of the Company of which notice
specifying the intention to propose the resolution as a Special Resolution has
been duly given and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each Member is entitled, or
|
||
(b) |
approved in writing by all of the Members entitled to vote at a
general meeting of the Company in one or more instruments each signed by one or
more of the Members and the effective date of the Special Resolution so adopted
shall be the date on which the instrument or the last of such instruments if
more than one, is executed.
|
2. |
In these Articles, save where the context requires otherwise:
|
(a) |
words importing the singular number shall include the plural number and vice
versa;
|
5
(b) |
words importing the masculine gender only shall include the feminine gender;
|
||
(c) |
words importing persons only shall include companies or associations or bodies
of persons, whether corporate or not;
|
||
(d) |
may
shall be construed as permissive and
shall
shall be construed as
imperative;
|
||
(e) |
a reference to a dollar or dollars (or US$) is a reference to dollars of the
United States;
|
||
(f) |
references to a statutory enactment shall include reference to any amendment or
re-enactment thereof for the time being in force; and
|
||
(g) |
any phrase introduced by the terms including, include, in particular or
any similar expression shall be construed as illustrative and shall not limit the sense
of the words preceding those terms.
|
3. |
Subject to the last two preceding Articles, any words defined in the Companies Law shall, if
not inconsistent with the subject or context, bear the same meaning in these Articles.
|
4. |
The business of the Company may be commenced as soon after incorporation as the Directors see
fit.
|
5. |
The registered office of the Company shall be at such address in the Cayman Islands as the
Directors shall from time to time determine. The Company may in addition establish and
maintain such other offices and places of business and agencies in such places as the
Directors may from time to time determine.
|
6. |
The authorized share capital of the Company at the date of adoption of these Articles is
US$25,000,000 divided into 2,500,000,000 ordinary shares of a nominal or par value of US$0.01
each with power for the Company insofar as is permitted by law, to redeem or purchase any of
its shares and to increase or reduce the said capital subject to the provisions of the Statute
and these Articles and to issue any part of its capital, whether original, redeemed or
increased with or without any preference, priority or special privilege or subject to any
postponement of rights or to any conditions or restrictions and so that unless the conditions
of issue shall otherwise expressly declare every issue of shares whether declared to be
preference or otherwise shall be subject to the powers hereinbefore contained.
|
7. |
Subject to the provisions, if any, in that behalf in the Memorandum of Association, the
Directors may re-designate allot, issue, grant options over or otherwise dispose of shares of
the Company (including fractions of a share) with or without preferred, deferred or other
special rights or restrictions, whether in regard to dividend, voting, return of capital or
otherwise in such classes or series and to such persons, at such times and on such other terms
as they think proper. The Company shall not issue shares in bearer form.
|
8. |
The Company shall maintain a Register of its Members and every person whose name is entered
as a member in the Register of Members shall, without payment, be entitled to a certificate
within two months after allotment or lodgement of transfer (or within such other period as the
conditions of issue shall provide) in the form determined by the Directors. All certificates
shall specify the share or shares held by that person and the amount paid up thereon, provided
that in respect of a share or shares held jointly by several persons the Company shall not be
bound to issue more than one certificate, and delivery of a certificate for a share to one of
several joint holders shall be sufficient delivery to all. All certificates for shares shall
be delivered personally or sent through the post addressed to the member entitled thereto at
the Members registered address as appearing in the register.
|
6
9. |
Every share certificate of the Company shall bear legends required under the applicable laws,
including the Securities Act.
|
10. |
Any two or more certificates representing shares of any one class held by any Member may at
the Members request be cancelled and a single new certificate for such shares issued in lieu
on payment (if the Directors shall so require) of US$1.00 or such smaller sum as the Directors
shall determine.
|
11. |
If a share certificate shall be damaged or defaced or alleged to have been lost, stolen or
destroyed, a new certificate representing the same shares may be issued to the relevant Member
upon request subject to delivery up of the old certificate or (if alleged to have been lost,
stolen or destroyed) compliance with such conditions as to evidence and indemnity and the
payment of out-of-pocket expenses of the Company in connection with the request as the
Directors may think fit.
|
12. |
In the event that shares are held jointly by several persons, any request may be made by any
one of the joint holders and if so made shall be binding on all of the joint holders.
|
13. |
The instrument of transfer of any share shall be in writing and in such usual or common form
or such other form as the Directors may in their discretion approve and be executed by or on
behalf of the transferor and shall be accompanied by the certificate of the shares to which it
relates and such other evidence as the Directors may reasonably require to show the right of
the transferor to make the transfer. The transferor shall be deemed to remain a holder of the
share until the name of the transferee is entered in the Register of Members in respect
thereof.
|
14. |
All instruments of transfer which are registered shall be retained by the Company, but any
instrument of transfer which the Directors decline to register shall (except in any case of
fraud) be returned to the person depositing the same.
|
15. | (a) |
The Board may, in its absolute discretion, and without assigning any reason, refuse to
register a transfer of any share which is not fully paid up or upon which the Company has a
lien.
|
(b) |
The Board may also decline to register any transfer of any share unless:
|
||
|
the instrument of transfer is lodged with the Company, accompanied by the
certificate for the shares to which it relates and such other evidence as the Board 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;
|
||
|
the instrument of transfer is properly stamped, if required;
|
||
|
in the case of a transfer to joint holders, the number of joint holders to whom the
share is to be transferred does not exceed four; or
|
||
|
the shares transferred are free of any lien in favour of the Company.
|
16. |
If the Directors refuse to register a transfer of any shares, they shall within two months
after the date on which the transfer was lodged with the Company send to each of the
transferor and the transferee notice of the refusal.
|
17. |
The registration of transfers may, on 14 days notice being given by advertisement in such
one or more newspapers or by electronic means, be suspended and the Register of Members closed
at such times and for such periods as the Directors may, in their absolute discretion, from
time to time determine, provided always that such registration shall not be suspended nor the
Register of Members closed for more than 30 days in any year.
|
7
18. |
Subject to the provisions of the Statutes and these Articles, the Company may:
|
(a) |
issue shares on terms that they are to be redeemed or are liable to be redeemed
at the option of the Company or the Member on such terms and in such manner as the
Directors may, before the issue of such shares, determine;
|
||
(b) |
purchase its own shares (including any redeemable shares) on such terms and in
such manner as the Directors may determine; and
|
||
(c) |
make a payment in respect of the redemption or purchase of its own shares
otherwise than out of profits or the proceeds of a fresh issue of shares.
|
19. |
Any share in respect of which notice of redemption has been given shall not be entitled to
participate in the profits of the Company in respect of the period after the date specified as
the date of redemption in the notice of redemption.
|
20. |
The redemption or purchase of any share shall not be deemed to give rise to the redemption or
purchase of any other share.
|
21. |
The Directors may when making payments in respect of redemption or purchase of shares, if
authorized by the terms of issue of the shares being redeemed or purchased or with the
agreement of the holder of such shares, make such payment in any form of consideration.
|
22. |
(a) The shares Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable
Person shall be subject to redemption by the Company, out of funds legally available therefor,
by action of the Board of Directors, to the extent required by the Gaming Authority making the
determination of unsuitability or to the extent deemed necessary or advisable by the Board of
Directors. If a Gaming Authority requires the Company of an Affiliate of the Company, or the
Board of Directors deems it necessary or advisable, to redeem the shares, the Company shall
give a Redemption Notice to the Unsuitable Person or its Affiliate and shall purchase on the
Redemption Date the number of shares specified in the Redemption Notice for the Redemption
Price set forth in the Redemption Notice. From and after the Redemption Date, such shares
shall no longer be deemed to be outstanding and such Unsuitable Person or any Affiliate of
such Unsuitable Person shall cease to be a Member with respect to such shares and all rights
of such Unsuitable Person or any Affiliate of such Unsuitable Person therein, other than the
right to receive the Redemption Price, shall cease. Such Unsuitable Person or its Affiliate
shall surrender the certificates representing any shares to be redeemed in accordance with the
requirements of the Redemption Notice.
|
8
23. |
If at any time the share capital is divided into different classes of shares, the rights
attaching to any class (unless otherwise provided by the terms of issue of the shares of that
class) may, subject to these Articles, be varied or abrogated with the unanimous written
consent of the holders of the issued shares of that class, or with the sanction of a
resolution passed by at least two-thirds of the holders of shares of the class present in
person or by proxy at a separate general meeting of the holders of the shares of the class.
|
24. |
The provisions of these Articles relating to general meetings shall apply to every such
general meeting of the holders of one class of shares except that the necessary quorum shall
be one person holding or representing by proxy at least one-third of the issued shares of the
class and that any holder of shares of the class present in person or by proxy may demand a
poll.
|
25. |
The rights conferred upon the holders of the shares of any class issued with preferred or
other rights shall not, unless otherwise expressly provided by the terms of issue of the
shares of that class, be deemed to be varied or abrogated by the creation or issue of further
shares ranking
pari passu
therewith or the redemption or purchase of shares of any class by
the Company.
|
26. |
The Company may in so far as may be permitted by law, pay a commission to any person in
consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally
for any shares of the Company. Such commissions may be satisfied by the payment of cash or the
lodgement of fully or partly paid-up shares or partly in one way and partly in the other. The
Company may also on any issue of shares pay such brokerage as may be lawful.
|
27. |
No person shall be recognised by the Company as holding any share upon any trust and the
Company shall not be bound by or be compelled in any way to recognise (even when having notice
thereof) any equitable, contingent, future, or partial interest in any share, or any interest
in any fractional part of a share, except an absolute right to the entirety thereof in the
registered holder.
|
28. |
The Directors may issue fractions of a share of any class of shares, and, if so issued, a
fraction of a share (calculated to three decimal points) shall be subject to and carry the
corresponding fraction of liabilities (whether with respect to any unpaid amount thereon,
contribution, calls or otherwise), limitations, preferences, privileges, qualifications,
restrictions, rights (including, without limitation, voting and participation rights) and
other attributes of a whole share of the same class of shares.
|
29. |
The Company shall have a first and paramount lien and charge on all shares that are not fully
paid-up registered in the name of a Member (whether solely or jointly with others) for all
debts, liabilities or engagements to or with the Company (whether presently payable or not) by
such Member or his estate, either alone or jointly with any other person, whether a Member or
not, but the Directors may at any time declare any share to be wholly or in part exempt from
the provisions of this Article. The registration of a transfer of any such share shall operate
as a waiver of the Companys lien (if any) thereon. The Companys lien (if any) on such share
shall extend to all dividends or other monies payable in respect thereof.
|
30. |
The Company may sell, in such manner as the Directors think fit, any shares on which the
Company has a lien, but no sale shall be made unless an amount in respect of which the lien
exists is presently payable nor until the expiration of 14 days after a notice in writing,
stating and demanding payment of such part of the amount in respect of which the lien exists
as is presently payable, has been given to the registered holder for the time being of the
share, or the persons entitled thereto by reason of his death or bankruptcy.
|
9
31. |
For giving effect to any such sale the Directors may authorise such persons to transfer the
shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the
shares comprised in any such transfer and he shall not be bound to see to the application of
the purchase money, nor shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
|
32. |
The proceeds of the sale after deduction of expenses, fees and commissions incurred by the
Company shall be received by the Company and applied in payment of such part of the amount in
respect of which the lien exists as is presently payable, and the residue shall (subject to a
like lien for sums not presently payable as existed upon the shares prior to the sale) be paid
to the person entitled to the shares at the date of the sale.
|
33. |
The Directors may from time to time make calls upon the Members in respect of any moneys
unpaid on their shares, and each Member shall (subject to receiving at least 14 days notice
specifying the time or times of payment) pay to the Company at the time or times so specified
the amount called on his shares.
|
34. |
The joint holders of a share shall be jointly and severally liable to pay calls in respect
thereof.
|
35. |
If a sum called in respect of a share is not paid before or on the day appointed for payment
thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of
eight percent per annum from the day appointed for the payment thereof to the time of the
actual payment, but the Directors shall be at liberty to waive payment of that interest wholly
or in part.
|
36. |
The provisions of these Articles as to the liability of joint holders and as to payment of
interest shall apply in the case of non-payment of any sum which, by the terms of issue of a
share, becomes payable at a fixed time, whether on account of the amount of the share, or by
way of premium, as if the same had become payable by virtue of a call duly made and notified.
|
37. |
The Directors may make arrangements on the issue of partly paid shares for a difference
between the Members, or the particular shares, in the amount of calls to be paid and in the
times of payment.
|
38. |
The Directors may, if they think fit, receive from any Member willing to advance the same all
or any part of the moneys uncalled and unpaid upon any shares held by him, and upon all or any
of the moneys so advanced may (until the same would, but for such advance, become presently
payable) pay interest at such rate (not exceeding without the sanction of an Ordinary
Resolution, eight percent per annum) as may be agreed upon between the Member paying the sum
in advance and the Directors. No such sum paid in advance of calls shall entitle the member
paying such sum to any portion of a dividend declared in respect of any period prior to the
date upon which such sum would, but for such payment, become presently payable.
|
39. |
If a Member fails to pay any call or instalment of a call in respect of partly paid shares on
the day appointed for payment thereof, the Directors may, at any time thereafter during such
time as any part of such call or instalment remains unpaid, serve a notice on him requiring
payment of so much of the call or instalment as is unpaid, together with any interest which
may have accrued.
|
40. |
The notice shall name a further day (not earlier than the expiration of 14 days from the date
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.
|
41. |
If the requirements of any such notice as aforesaid are not complied with, any share in
respect of which the notice has been given may at any time thereafter, before the payment
required by notice has been made, be forfeited by a resolution of the Directors to that
effect.
|
42. |
A forfeited share may be sold or otherwise disposed of on such terms and in such manner as
the Directors think fit, and at any time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit.
|
10
43. |
A person whose shares have been forfeited shall cease to be a Member in respect of the
forfeited shares, but shall, notwithstanding, remain liable to pay to the Company all moneys
which at the date of forfeiture were payable by him to the Company in respect of the shares,
but his liability shall cease if and when the Company receives payment in full of the amount
unpaid on the shares.
|
44. |
A statutory declaration in writing that the declarant is a Director of the Company, and that
a share in the Company has been duly forfeited on a date stated in the declaration, shall be
conclusive evidence of the facts therein stated as against all persons claiming to be entitled
to the share. 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 and he shall thereupon be registered as the holder of
the share, and shall not be bound to see to the application of the purchase money, if any, nor
shall his title to the share be affected by any irregularity or invalidity in the proceedings
in reference to the forfeiture, sale or disposal of the share.
|
45. |
The provisions of these Articles as to forfeiture shall apply in the case of non-payment of
any sum which by the terms of issue of a share becomes due and payable, whether on account of
the amount of the share, or by way of premium, as if the same had been payable by virtue of a
call duly made and notified.
|
46. |
The Company shall be entitled to charge a fee not exceeding one dollar (US$1.00) on the
registration of every probate, letters of administration, certificate of death or marriage,
power of attorney, notice in lieu of distringas, or other instrument.
|
47. |
The legal personal representative of a deceased sole holder of a share shall be the only
person recognised by the Company as having any title to the share. In the case of a share
registered in the name of two or more holders, the survivors or survivor, or the legal
personal representatives of the deceased survivor, shall be the only person recognised by the
Company as having any title to the share.
|
48. |
Any person becoming entitled to a share in consequence of the death or bankruptcy of a Member
shall upon such evidence being produced as may from time to time be required by the Directors,
have the right either to be registered as a Member in respect of the share or, instead of
being registered himself, to make such transfer of the share as the deceased or bankrupt
person could have made. If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in writing signed by him
stating that he so elects, but the Directors shall, in either case, have the same right to
decline or suspend registration as they would have had in the case of a transfer of the share
by the deceased or bankrupt person before the death or bankruptcy.
|
49. |
A person becoming entitled to a share by reason of the death or bankruptcy of the holder
shall be entitled to the same dividends and other advantages to which he would be entitled if
he were the registered holder of the share, except that he shall not, before being registered
as a Member in respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to meetings of the Company, provided however, that the
Directors may at any time give notice requiring any such person to elect either to be
registered himself or to transfer the share, and if the notice is not complied with within
ninety days, the Directors may thereafter withhold payment of all dividends, bonuses or other
monies payable in respect of the Share until the requirements of the notice have been complied
with.
|
50. |
The Company may from time to time by Ordinary Resolution:
|
(a) |
increase the share capital by such sum, to be divided into shares of such
classes and amount, as the resolution shall prescribe;
|
||
(b) |
consolidate and divide all or any of its share capital into shares of a larger
amount than its existing shares;
|
11
(c) |
convert all or any of its paid up shares into stock and reconvert that stock
into paid up shares of any denomination;
|
(d) |
sub-divide its existing shares, or any of them into shares of a smaller amount
provided 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 case of the share
from which the reduced share is derived;
|
(e) |
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 the shares so cancelled.
|
51. |
The Company may by Special Resolution reduce its share capital and any capital redemption
reserve in any manner authorized by law.
|
52. |
All new shares created hereunder shall be subject to the same provisions with reference to
the payment of calls, liens, transfer, transmission, forfeiture and otherwise.
|
53. |
For the purpose of determining those Members that are entitled to receive notice of, attend
or vote at any meeting of Members or any adjournment thereof, or those Members that are
entitled to receive payment of any dividend, or in order to make a determination as to who is
a Member for any other purpose, the Directors may provide that the Register of Members shall
be closed for transfers for a stated period but not to exceed in any case 40 days. If the
Register of Members shall be so closed for the purpose of determining those Members that are
entitled to receive notice of, attend or vote at a meeting of Members such register shall be
so closed for at least 10 days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the Register of Members.
|
54. |
In lieu of or apart from closing the Register of Members, the Directors may fix in advance a
date as the record date for any such determination of those Members that are entitled to
receive notice of, attend or vote at a meeting of the Members and for the purpose of
determining those Members that are entitled to receive payment of any dividend the Directors
may, at or within 90 days prior to the date of declaration of such dividend fix a subsequent
date as the record date of such determination.
|
55. |
If the Register of Members is not so closed and no record date is fixed for the determination
of those Members entitled to receive notice of, attend or vote at a meeting of Members or
those Members that are entitled to receive payment of a dividend, the date on which notice of
the meeting is posted or the date on which the resolution of the Directors declaring such
dividend is adopted, as the case may be, shall be the record date for such determination of
Members. When a determination of those Members that are entitled to receive notice of, attend
or vote at a meeting of Members has been made as provided in this Article, such determination
shall apply to any adjournment thereof.
|
56. |
All general meetings other than annual general meetings shall be called extraordinary general
meetings.
|
57. | (a) |
The Company shall in each year hold a general meeting as its annual general meeting and
shall specify the meeting as such in the notices calling it. The annual general meeting shall
be held at such time and place as may be determined by the Directors.
|
(b) |
At these meetings the report of the Directors (if any) shall be presented.
|
58. | (a) |
The Directors may call general meetings, and they shall on a Members requisition
forthwith proceed to convene an extraordinary general meeting of the Company.
|
(b) |
A Members requisition is a requisition of Members of the Company holding at the
date of deposit of the requisition not less than 10% of such of the paid-up capital of
the Company as at that date of the deposit carries the right of voting at general
meetings of the Company.
|
12
(c) |
The requisition must state the objects of the meeting and must be signed by the
requisitionists and deposited at the registered office of the Company, and may consist
of several documents in like form each signed by one or more requisitionists.
|
(d) |
If the Directors do not within twenty one (21) days from the date of the
deposit of the requisition duly proceed to convene a general meeting to be held within
a further twenty one (21) days, the requisitionists, or any of them representing more
than one half of the total voting rights of all of them, may themselves convene a
general meeting, but any meeting so convened shall not be held after the expiration of
three months after the expiration of the second said twenty one days.
|
(e) |
A general meeting convened as aforesaid by requisitionists shall be convened in
the same manner as nearly as possible as that in which general meetings are to be
convened by Directors.
|
59. |
At least seven days notice shall be given for any general meeting. Every notice shall be
exclusive of the day on which it is given or deemed to be given and of the day for which it is
given and shall specify the place, the day and the hour of the meeting and the general nature
of the business and shall be given in the manner hereinafter mentioned or in such other manner
if any as may be prescribed by the Company, provided that a general meeting of the Company
shall, whether or not the notice specified in this Article has been given and whether or not
the provisions of these Articles regarding general meetings have been complied with, be deemed
to have been duly convened if it is so agreed:
|
(a) |
in the case of an annual general meeting by all the Members (or their proxies)
entitled to attend and vote thereat; and
|
(b) |
in the case of an extraordinary general meeting by a majority in number of the
Members (or their proxies) having a right to attend and vote at the meeting, being a
majority together holding not less than ninety five per cent in par value of the shares
giving that right.
|
60. |
The accidental omission to give notice of a meeting to or the non-receipt of a notice of a
meeting by any Member shall not invalidate the proceedings at any meeting.
|
61. |
No business shall be transacted at any general meeting unless a quorum of Members is present
at the time when the meeting proceeds to business. The holders of shares being not less than
an aggregate of one-third of all shares in issue present in person or by proxy and entitled to
vote shall be a quorum for all purposes. A person may participate at a general meeting by
conference telephone or other communications equipment by means of which all the persons
participating in the meeting can communicate with each other. Participation by a person in a
general meeting in this manner is treated as presence in person at that meeting.
|
62. |
If within half an hour from the time appointed for the meeting a quorum is not present, the
meeting, if convened upon the requisition of Members, shall be dissolved. In any other case
it shall stand 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 half an hour from the time appointed
for the meeting the Member or Members present and entitled to vote shall be a quorum.
|
63. |
Either of the Co-Chairmen (as defined in Article 81) of the Board of Directors shall preside
as chairman at every general meeting of the Company.
|
64. |
If at any meeting the chairman of the Board of Directors is not present within fifteen
minutes after the time appointed for holding the meeting or is unwilling to act as chairman,
the Members present shall choose one of their number to be a chairman of the meeting.
|
65. |
The chairman may with the consent of any meeting at which a quorum is present (and shall if
so directed by the meeting) adjourn a meeting from time to time and from place to place, but
no business shall be transacted at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is adjourned for 10 days or
more, not less than seven days notice of the adjourned meeting shall be given as in the
case of an original meeting. Save as aforesaid it shall not be necessary to give any notice
of an adjournment or of the business to be transacted at an adjourned meeting.
|
13
66. |
At any general meeting a resolution put to the vote of the meeting shall be decided on a show
of hands, unless a poll is (before or on the declaration of the result of the show of hands)
demanded by the chairman of the Board or one or more Members present in person or by proxy
entitled to vote and who together hold not less than 10 per cent of the paid up voting share
capital of the Company, and unless a poll is so demanded, a declaration by the chairman that a
resolution has, on a show of hands, been carried, or carried unanimously, or by a particular
majority, or lost, and an entry to that effect in the book of the proceedings of the Company,
shall be conclusive evidence of the fact, without proof of the number or proportion of the
votes recorded in favour of, or against, that resolution.
|
67. |
If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the
result of the poll shall be deemed to be the resolution of the meeting at which the poll was
demanded. The demand for a poll may be withdrawn.
|
68. |
In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of
the meeting at which the show of hands takes place or at which the poll is demanded, shall not
be entitled to a second or casting vote.
|
69. |
A poll demanded on the election of a chairman of the meeting or on a question of adjournment
shall be taken forthwith. A poll demanded on any other question shall be taken at such time
as the chairman of the meeting directs.
|
70. |
Subject to any rights and restrictions for the time being attached to any class or classes of
shares, on a show of hands every Member present in person and every person representing a
Member by proxy at a general meeting of the Company shall have one vote and on a poll every
Member and every person representing a Member by proxy shall have one vote for each share
registered in his name, or the name of the person represented by proxy, in the Register of
Members.
|
71. |
In the case of joint holders the vote of the senior who tenders a vote whether in person or
by proxy shall be accepted to the exclusion of the votes of the joint holders and for this
purpose seniority shall be determined by the order in which the names stand in the Register of
Members.
|
72. |
A Member of unsound mind, or in respect of whom an order has been made by any court having
jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee,
or other person in the nature of a committee appointed by that court, and any such committee
or other person may vote by proxy.
|
73. |
No Member shall be entitled to vote at any general meeting unless all calls or other sums
presently payable by him in respect of shares carrying the right to vote held by him have been
paid.
|
74. |
On a poll, votes may be given either personally or by proxy.
|
75. |
The instrument appointing a proxy shall be in writing under the hand of the appointor or of
his attorney duly authorized in writing or, if the appointor is a corporation, either under
seal or under the hand of an officer or attorney duly authorized. A proxy need not be a
Member of the Company.
|
76. |
An instrument appointing a proxy may be in any usual or common form or such other form as the
Directors may approve.
|
77. |
The instrument appointing a proxy shall be deemed to confer authority to demand or join in
demanding a poll.
|
14
78. |
A resolution in writing signed by all the Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations by their duly
authorized representatives) shall be as valid and effective as if the same had been passed at
a general meeting of the Company duly convened and held.
|
79. |
Any corporation which is a Member or a Director may by resolution of its directors or other
governing body authorise such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of Members or of the Board of Directors or of a
committee of Directors, and the person so authorized shall be entitled to exercise the same
powers on behalf of the corporation which he represents as that corporation could exercise if
it were an individual Member or Director.
|
80. |
If a clearing house (or its nominee) is a Member of the Company it may, by resolution of its
directors or other governing body or by power of attorney, authorise such person or persons as
it thinks fit to act as its representative or representatives at any general meeting of the
Company or at any general meeting of any class of Members of the Company provided that, if
more than one person is so authorized, the authorisation shall specify the number and class of
shares in respect of which each such person is so authorized. A person so authorized pursuant
to this Article shall be entitled to exercise the same powers on behalf of the clearing house
(or its nominee) which he represents as that clearing house (or its nominee) could exercise if
it were an individual Member holding the number and class of shares specified in such
authorisation.
|
81. | (A) |
Unless otherwise determined by the Company in general meeting, the number of Directors
shall be ten Directors, or such number of Directors to be determined from time to time solely
by resolution approved by a supermajority of at least two-thirds of the vote of Directors
present at the board meeting. The Directors shall be elected or appointed in the first place
by the subscribers to the Memorandum of Association or by a majority of them. For so long as
shares or ADSs are quoted on Nasdaq, the Directors shall include such number of Independent
Directors as applicable law, rules or regulations or the Nasdaq Rules require.
|
(B) |
Each Director shall hold office until the expiration of his term and until his
successor shall have been elected or appointed.
|
(C) |
The Board of Directors shall have Co-Chairmen of the Board of Directors (the
Co-Chairmen) elected and appointed by a majority of the Directors then in office.
The period for which the Co-Chairmen will hold office will also be determined by a
majority of all of the Directors then in office. One of the Co-Chairmen shall preside
as chairman at every meeting of the Board of Directors. To the extent the Co-Chairmen
are not present at a meeting of the Board of Directors within fifteen minutes after the
time appointed for holding the same, the attending Directors may choose one of their
number to be the chairman of the meeting.
|
(D) |
The Company may by Ordinary Resolution appoint any person to be a Director
either to fill a vacancy on the Board created under Article 82 or Article 99 or as an
addition to the existing Board.
|
(E) |
The Directors may by the affirmative vote of all Directors appoint any person
to be a Director either to fill a vacancy on the Board created under Article 82 or
Article 99 or as an addition to the existing Board.
|
82. |
Subject to the terms of these Articles and any agreements between the Company and a Director,
a Director shall hold office until he is removed from office by Special Resolution.
|
83. |
The Board may, from time to time, and except as required by applicable law or the listing
rules of the recognized stock exchange or automated quotation system where the Companys
securities are traded, adopt, institute, amend, modify or revoke the corporate governance
policies or initiatives, which shall
be intended to set forth the policies of the Company and the Board on various corporate
governance related matters as the Board shall determine by resolution from time to time.
|
15
84. |
A Director shall not be required to hold any shares in the Company by way of qualification.
A Director who is not a member of the Company shall nevertheless be entitled to attend and
speak at general meetings.
|
85. |
The Directors shall receive such remuneration as the Board may from time to time determine.
Each Director shall be entitled to be repaid or prepaid all travelling, hotel and incidental
expenses reasonably incurred or expected to be incurred by him in attending meetings of the
Board or committees of the Board or general meetings or separate meetings of any class of
shares or of debentures of the Company or otherwise in connection with the discharge of his
duties as a Director.
|
86. |
Any Director who, by request, goes or resides abroad for any purpose of the Company or who
performs services which in the opinion of the Board go beyond the ordinary duties of a
Director may be paid such extra remuneration (whether by way of salary, commission,
participation in profits or otherwise) as the Board may determine and such extra remuneration
shall be in addition to or in substitution for any ordinary remuneration provided for by or
pursuant to any other Article.
|
87. |
Any Director may in writing appoint another person to be his alternate to act in his place at
any meeting of the Directors at which he is unable to be present. Every such alternate shall
be entitled to notice of meetings of the Directors and to attend and vote thereat as a
Director when the person appointing him is not personally present and where he is a Director
to have a separate vote on behalf of the Director he is representing in addition to his own
vote. A Director may at any time in writing revoke the appointment of an alternate appointed
by him. Such alternate shall not be an officer of the Company and shall be deemed to be the
agent of the Director appointing him.
|
88. |
Any Director may appoint any person, whether or not a Director, to be the proxy of that
Director to attend and vote on his behalf, in accordance with instructions given by that
Director, or in the absence of such instructions at the discretion of the proxy, at a meeting
or meetings of the Directors which that Director is unable to attend personally. The
instrument appointing the proxy shall be in writing under the hand of the appointing Director
and shall be in any usual or common form or such other form as the Directors may approve, and
must be lodged with the chairman of the meeting of the Directors at which such proxy is to be
used, or first used, prior to the commencement of the meeting.
|
89. |
Subject to the Statutes, these Articles and to any resolutions made in a general meeting, the
business of the Company shall be managed by the Directors, who may pay all expenses incurred
in setting up and registering the Company and may exercise all powers of the Company. No
resolution made by the Company in a general meeting shall invalidate any prior act of the
Directors that would have been valid if that resolution had not been made.
|
90. |
Subject to these Articles, the Directors may from time to time appoint any person, whether or
not a director of the Company to hold such office in the Company as the Directors may think
necessary for the administration of the Company, including without prejudice to the foregoing
generality, the office of the Chief Executive Officer, one or more Vice Presidents, Chief
Financial Officer, Manager or Controller, and for such term and at such remuneration (whether
by way of salary or commission or participation in profits or partly in one way and partly in
another), and with such powers and duties as the Directors may think fit. Any person so
appointed by the Directors may be removed by the Directors. The Directors may also appoint one
or more of their number to the office of Managing Director upon like terms, but any such
appointment shall ipso facto determine if any Managing Director ceases from any cause to be a
Director, or if the Company by Ordinary Resolution resolves that his tenure of office be
terminated.
|
16
91. |
The Directors may delegate any of their powers to committees consisting of such member or
members of their body as they think fit; any committee so formed shall in the exercise of the
powers so delegated conform to any regulations that may be imposed on it by the Directors.
|
92. |
The Directors may from time to time and at any time by power of attorney appoint any company,
firm or person or body of persons, whether nominated directly or indirectly by the Directors,
to be the attorney or attorneys of the Company for such purposes and with such powers,
authorities and discretion (not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such conditions as they may think
fit, and any such power of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney as the Directors may think fit, and may
also authorise any such attorney to delegate all or any of the powers, authorities and
discretion vested in him.
|
93. |
The Directors may from time to time provide for the management of the affairs of the Company
in such manner as they shall think fit and the provisions contained in the following three
Articles shall not limit the general powers conferred by this paragraph.
|
94. |
The Directors from time to time and at any time may establish any committees, local boards or
agencies for managing any of the affairs of the Company and may appoint any persons to be
members of such committees or local boards and may appoint any managers or agents of the
Company and may fix the remuneration of any of the aforesaid.
|
95. |
The Directors from time to time and at any time may delegate to any such committee, local
board, manager or agent any of the powers, authorities and discretions for the time being
vested in the Directors and may authorise the members for the time being of any such local
board, or any of them to fill up any vacancies therein and to act notwithstanding vacancies
and any such appointment or delegation may be made on such terms and subject to such
conditions as the Directors may think fit and the Directors may at any time remove any person
so appointed and may annul or vary any such delegation, but no person dealing in good faith
and without notice of any such annulment or variation shall be affected thereby.
|
96. |
Any such delegates as aforesaid may be authorized by the Directors to subdelegate all or any
of the powers, authorities, and discretions for the time being vested in them.
|
97. |
The following actions require the resolution approved by a supermajority of at least
two-thirds of the vote of Directors at the board meeting:-
|
(a) |
subject to Article 147, any voluntary dissolution or liquidation of the Company; and
|
(b) |
the sale of all or substantially all of the assets of the Company.
|
98. |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or
charge its undertaking, property and uncalled capital or any part thereof, to issue
debentures, debenture stock and other securities whenever money is borrowed or as security for
any debt, liability or obligation of the Company or of any third party.
|
(a) |
becomes bankrupt or makes any arrangement or composition with his creditors;
|
(b) |
dies or is found to be or becomes of unsound mind;
|
(c) |
resigns his office by notice in writing to the Company;
|
17
(d) |
without special leave of absence from the Board, is absent from meetings of the
Board for six consecutive months and the Board resolves that his office be vacated; or
|
(e) |
if he or she shall be removed from office pursuant to these Articles.
|
100. |
The Directors may meet together (whether within or outside the Cayman Islands) for the
dispatch of business, adjourn, and otherwise regulate their meetings and proceedings as they
think fit. Questions arising at any meeting of the Directors shall be decided by a majority
of votes. A Director may at any time summon a meeting of the Directors by at least two days
notice in writing to every other Director and alternate Director.
|
101. |
A Director or Directors may participate in any meeting of the Board of Directors, or of any
committee appointed by the Board of Directors of which such Director or Directors are members,
by means of telephone or similar communication equipment by way of which all persons
participating in such meeting can hear each other and such participation shall be deemed to
constitute presence in person at the meeting.
|
102. |
The quorum necessary for the transaction of the business of the Directors may be fixed by the
Directors and unless so fixed shall be four, provided that a Director and his appointed
alternate Director shall be considered only one person for this purpose. A meeting of the
Directors at which a quorum is present when the meeting proceeds to business shall be
competent to exercise all powers and discretions for the time being exercisable by the
Directors. A meeting of the Directors may be held by means of telephone or teleconferencing
or any other telecommunications facility provided that all participants are thereby able to
communicate immediately by voice with all other participants and such participants shall be
deemed to constitute presence in person at the meeting.
|
103. |
A Director who is in any way, whether directly or indirectly, interested in a contract or
proposed contract with the Company shall declare the nature of his interest at a meeting of
the Directors. A general notice given to the Directors by any Director to the effect that he
is a member of any specified company or firm and is to be regarded as interested in any
contract which may thereafter be made with that company or firm shall be deemed a sufficient
declaration of interest in regard to any contract so made. A Director may vote in respect of
any contract or proposed contract or arrangement notwithstanding that he may be interested
therein and if he does so his vote shall be counted and he may be counted in the quorum at any
meeting of the Directors at which any such contract or proposed contract or arrangement shall
come before the meeting for consideration.
|
104. |
A Director may hold any other office or place of profit under the Company (other than the
office of auditor) in conjunction with his office of Director for such period and on such
terms (as to remuneration and otherwise) as the Directors may determine and no Director or
intending Director shall be disqualified by his office from contracting with the Company
either with regard to his tenure of any such other office or place of profit or as vendor,
purchaser or otherwise, nor shall any such contract or arrangement entered into by or on
behalf of the Company in which any Director is in any way interested, be liable to be avoided,
nor shall any Director so contracting or being so interested be liable to account to the
Company for any profit realised by any such contract or arrangement by reason of such Director
holding that office or of the fiduciary relation thereby established. A Director,
notwithstanding his interest, may be counted in the quorum present at any meeting whereat he
or any other Director is appointed to hold any such office or place of profit under the
Company or whereat the terms of any such appointment are arranged and he may vote on any such
appointment or arrangement.
|
105. |
Any Director may act by himself or his firm in a professional capacity for the Company, and
he or his firm shall be entitled to remuneration for professional services as if he were not a
Director; provided that nothing herein contained shall authorise a Director or his firm to act
as auditor to the Company.
|
106. |
The Directors shall cause minutes to be made in books or loose-leaf folders provided for the
purpose of recording:
|
(a) |
all appointments of officers made by the Directors;
|
18
(b) |
the names of the Directors present at each meeting of the Directors and of any
committee of the Directors; and
|
(c) |
all resolutions and proceedings at all meetings of the Company, and of the
Directors and of committees of Directors.
|
107. |
When the chairman of a meeting of the Directors signs the minutes of such meeting the same
shall be deemed to have been duly held notwithstanding that all the Directors have not
actually come together or that there may have been a technical defect in the proceedings.
|
108. |
A resolution signed by all the Directors shall be as valid and effectual as if it had been
passed at a meeting of the Directors duly called and constituted. When signed a resolution
may consist of several documents each signed by one or more of the Directors.
|
109. |
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 Articles of the
Company as the necessary quorum of Directors, the continuing Directors may act for the purpose
of increasing the number, or of summoning a general meeting of the Company, but for no other
purpose.
|
110. |
A committee appointed by the Directors may elect a chairman of its meetings. If no such
chairman is elected, or if at any meeting the chairman is not present within five minutes
after the time appointed for holding the same, the members present may choose one of their
number to be chairman of the meeting.
|
111. |
A committee appointed by the Directors may meet and adjourn as it thinks proper. Questions
arising at any meeting shall be determined by a majority of votes of the committee members
present and in case of an equality of votes the chairman shall have a second or casting vote.
|
112. |
All acts done by any meeting of the Directors or of a committee of Directors, or by any
person acting as a Director, shall notwithstanding that it be afterwards discovered that there
was some defect in the appointment of any such Director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
|
113. |
A Director of the Company who is present at a meeting of the Board of Directors at which
action on any Company matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the Minutes of the meeting or unless he shall file his
written dissent from such action with the person acting as the chairman or secretary of the
meeting before the adjournment thereof or shall forward such dissent by registered post to
such person immediately after the adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favour of such action.
|
114. |
Subject to any rights and restrictions for the time being attached to any class or classes of
shares and these Articles, the Directors may from time to time declare dividends (including
interim dividends) and other distributions on shares in issue and authorise payment of the
same out of the funds of the Company lawfully available therefor.
|
115. |
The Directors may, before recommending or declaring any dividend, set aside out of the funds
legally available for distribution such sums as they think proper as a reserve or reserves
which shall, at the discretion of the Directors be applicable for meeting contingencies, or
for equalising dividends or for any other purpose to which those funds be properly applied and
pending such application may, at the like discretion, either be employed in the business of
the Company or be invested in such investments (other than shares of the Company) as the
Directors may from time to time think fit.
|
116. |
Any dividend may be paid by cheque sent through the post to the registered address of the
Member or person entitled thereto, or in the case of joint holders, to any one of such joint
holders at his registered address or to such person and such address as the Member or person
entitled, or such joint holders as
the case may be, may direct. Every such cheque shall be made payable to the order of the
person to whom it is sent or to the order of such other person as the Member or person
entitled, or such joint holders as the case may be, may direct.
|
19
117. |
The Directors when paying dividends to the Members in accordance with the foregoing
provisions may make such payment either in cash or in specie.
|
118. |
Subject to any rights and restrictions for the time being attached to any class or classes of
shares, all dividends shall be declared and paid according to the amounts paid on the shares,
but if and so long as nothing is paid up on any of the shares in the Company dividends may be
declared and paid according to the par value of the shares. No amount paid on a share in
advance of calls shall, while carrying interest, be treated for the purposes of this Article
as paid on the share.
|
119. |
If several persons are registered as joint holders of any share, any of them may give
effectual receipts for any dividend or other moneys payable on or in respect of the share.
|
120. |
No dividend shall bear interest against the Company.
|
121. |
The books of account relating to the Companys affairs shall be kept in such manner as may be
determined from time to time by the Directors.
|
122. |
The books of account shall be kept at the registered office of the Company, or at such other
place or places as the Directors think fit, and shall always be open to the inspection of the
Directors.
|
123. |
The Directors shall from time to time determine whether and to what extent and at what times
and places and under what conditions or regulations the accounts and books of the Company or
any of them shall be open to the inspection of Members not being Directors, and no Member (not
being a Director) shall have any right of inspecting any account or book or document of the
Company except as conferred by law or authorized by the Directors or by the Company by
Ordinary Resolution.
|
124. |
The accounts relating to the Companys affairs shall be audited in such manner and with such
financial year end as may be determined from time to time by the Directors or failing any
determination as aforesaid shall not be audited.
|
125. |
The Board shall make the requisite annual returns and any other requisite filings in
accordance with the Statutes.
|
126. |
The Directors may appoint an Auditor of the Company who shall hold office until removed from
office by a resolution of the Directors and may fix his or their remuneration.
|
127. |
Every Auditor of the Company shall have a right of access at all times to the books and
accounts and vouchers of the Company and shall be entitled to require from the Directors and
Officers of the Company such information and explanation as may be necessary for the
performance of the duties of the auditors.
|
128. |
Auditors shall, if so required by the Directors, make a report on the accounts of the Company
during their tenure of office at the next annual general meeting following their appointment,
and at any time during their term of office, upon request of the Directors or any general
meeting of the Members.
|
20
129. |
The Seal of the Company shall not be affixed to any instrument except by the authority of a
resolution of the Board of Directors provided always that such authority may be given prior to
or after the affixing
of the Seal and if given after may be in general form confirming a number of affixings of
the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an
Assistant Secretary) or in the presence of any one or more persons as the Directors may
appoint for the purpose and every person as aforesaid shall sign every instrument to which
the Seal of the Company is so affixed in their presence.
|
130. |
The Company may maintain a facsimile of its Seal in such countries or places as the Directors
may appoint and such facsimile Seal shall not be affixed to any instrument except by the
authority of a resolution of the Board of Directors provided always that such authority may be
given prior to or after the affixing of such facsimile Seal and if given after may be in
general form confirming a number of affixings of such facsimile Seal. The facsimile Seal
shall be affixed in the presence of such person or persons as the Directors shall for this
purpose appoint and such person or persons as aforesaid shall sign every instrument to which
the facsimile Seal of the Company is so affixed in their presence and such affixing of the
facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal
had been affixed in the presence of and the instrument signed by a Director or a Secretary (or
an Assistant Secretary) or in the presence of any one or more persons as the Directors may
appoint for the purpose.
|
131. |
Notwithstanding the foregoing, a Director shall have the authority to affix the Seal, or the
facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter
contained therein but which does not create any obligation binding on the Company.
|
132. |
Subject to Article 90, the Company may have a Chief Executive Officer, one or more Vice
Presidents and Chief Financial Officer, President, a Secretary or Secretary-Treasurer
appointed by the Directors. The Directors may also from time to time appoint such other
officers as they consider necessary, all for such terms, at such remuneration and to perform
such duties, and subject to such provisions as to disqualification and removal as the
Directors from time to time decide.
|
133. |
Subject to the Statutes and these Articles, the Board may, with the authority of an Ordinary
Resolution:
|
(a) |
resolve to capitalise an amount standing to the credit of reserves (including a
share premium account, capital redemption reserve and profit and loss account), whether
or not available for distribution;
|
(b) |
appropriate the sum resolved to be capitalised to the Members in proportion to
the nominal amount of shares (whether or not fully paid) held by them respectively and
apply that sum on their behalf in or towards:
|
(i) |
paying up the amounts (if any) for the time being unpaid on
shares held by them respectively; or
|
(ii) |
paying up in full unissued shares or debentures of a nominal
amount equal to that sum,
|
(c) |
make any arrangements it thinks fit to resolve a difficulty arising in the
distribution of a capitalised reserve and in particular, without limitation, where
shares or debentures become distributable in fractions the Board may deal with the
fractions as it thinks fit;
|
21
(d) |
authorise a person to enter (on behalf of all the Members concerned) an
agreement with the Company providing for either:
|
(i) |
the allotment to the Members respectively, credited as fully
paid, of shares or debentures to which they may be entitled on the
capitalisation, or
|
(ii) |
the payment by the Company on behalf of the Members (by the
application of their respective proportions of the reserves resolved to be
capitalised) of the amounts or part of the amounts remaining unpaid on their
existing shares,
|
(e) |
generally do all acts and things required to give effect to the resolution.
|
134. |
The Directors shall in accordance with Section 34 of the Companies Law establish a share
premium account and shall carry to the credit of such account from time to time a sum equal to
the amount or value of the premium paid on the issue of any share.
|
135. |
There shall be debited to any share premium account on the redemption or purchase of a share
the difference between the nominal value of such share and the redemption or purchase price
provided always that at the discretion of the Directors such sum may be paid out of the
profits of the Company or, if permitted by Section 37 of the Companies Law, out of capital.
|
136. |
Except as otherwise provided in these Articles, any notice or document may be served by the
Company or by the person entitled to give notice to any Member either personally, by facsimile
or by sending it through the post in a prepaid letter or via a recognised courier service,
fees prepaid, addressed to the Member at his address as appearing in the Register of Members
or, to the extent permitted by all applicable laws and regulations, by electronic means by
transmitting it to any electronic number or address or website supplied by the member to the
Company or by placing it on the Companys Website provided that the Company has obtained the
Members prior express positive confirmation in writing to receive notices in such manner. In
the case of joint holders of a share, all notices shall be given to that one of the joint
holders whose name stands first in the Register of Members in respect of the joint holding,
and notice so given shall be sufficient notice to all the joint holders.
|
137. |
Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail.
|
138. |
Any Member present, either personally or by proxy, at any meeting of the Company shall for
all purposes be deemed to have received due notice of such meeting and, where requisite, of
the purposes for which such meeting was convened.
|
139. |
Any notice or other document, if served by (a) post, shall be deemed to have been served five
days after the time when the letter containing the same is posted and if served by courier,
shall be deemed to have been served five days after the time when the letter containing the
same is delivered to the courier (in proving such service it shall be sufficient to prove that
the letter containing the notice or document was properly addressed and duly posted or
delivered to the courier), or (b) facsimile, shall be deemed to have been served upon
confirmation of receipt, or (c) recognised delivery service, shall be deemed to have been
served 48 hours after the time when the letter containing the same is delivered to the courier
service and in proving such service it shall be sufficient to provide that the letter
containing the notice or documents was properly addressed and duly posted or delivered to the
courier or (d) electronic means as provided herein shall be deemed to have been served and
delivered at the expiration of 24 hours after the time it was sent.
|
140. |
Any notice or document delivered or sent to any Member in accordance with the terms of these
Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not
the Company has notice of his death or bankruptcy, be deemed to have been duly served in
respect of any share registered in the name of such Member as sole or joint holder, unless his
name shall at the time of the service of the notice or document, have been removed from the
Register of Members as the holder of the share, and such service shall for all purposes be
deemed a sufficient service of such notice or
document on all persons interested (whether jointly with or as claiming through or under
him) in the share.
|
22
(a) |
all Members holding shares with the right to receive notice and who have
supplied to the Company an address for the giving of notices to them; and
|
(b) |
every person entitled to a share in consequence of the death or bankruptcy of a
Member, who but for his death or bankruptcy would be entitled to receive notice of the
meeting.
|
142. |
No member shall be entitled to require discovery of any information in respect of any detail
of the Companys trading or any information which is or may be in the nature of a trade secret
or secret process which may relate to the conduct of the business of the Company and which in
the opinion of the Board would not be in the interests of the members of the Company to
communicate to the public.
|
143. |
The Board shall be entitled to release or disclose any information in its possession, custody
or control regarding the Company or its affairs to any of its Members including, without
limitation, information contained in the Register of Members and transfer books of the
Company.
|
144. |
Every Director (including for the purposes of this Article any Alternate Director appointed
pursuant to the provisions of these Articles) and officer of the Company for the time being
and from time to time shall be indemnified and secured harmless out of the assets and funds of
the Company against all actions, proceedings, costs, charges, expenses, losses, damages or
liabilities incurred or sustained by him in connection with the execution or discharge of his
duties, powers, authorities or discretions as a Director or officer of the Company, including
without prejudice to the generality of the foregoing, any costs, expenses, losses or
liabilities incurred by him in defending (whether successfully or otherwise) any civil
proceedings concerning the Company or its affairs in any court whether in the Cayman Islands
or elsewhere. For the avoidance of doubt, the Company may enter into an agreement with any
Director or officer of the Company in respect of indemnification or exculpation in terms of
which differ from the provisions of this Article.
|
145. |
No such Director or officer of the Company shall be liable to the Company for any loss or
damage unless such liability arises through the dishonesty, fraud or default of such Director
or officer.
|
146. |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on
December 31
st
in each year and shall begin on January 1
st
in each year.
|
147. |
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 Law, divide amongst the
Members in kind the whole or any part of the assets of the Company (whether they shall consist
of property of the same kind or not) and may for that purpose value any assets and determine
how the division shall be carried out as between the Members or different classes of Members.
The liquidator may, with the like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the Members as the liquidator, with the like
sanction, shall think fit, but so that no Member shall be compelled to accept any asset upon
which there is a liability.
|
23
148. |
If the Company shall be wound up, and the assets available for distribution amongst the
Members shall be insufficient to repay the whole of the share capital, such assets shall be
distributed so that, as nearly as may be, the losses shall be borne by the Members in
proportion to the par value of the shares held by
them. If in a winding up the assets available for distribution amongst the Members shall be
more than sufficient to repay the whole of the share capital at the commencement of the
winding up, the surplus shall be distributed amongst the Members in proportion to the par
value of the shares held by them at the commencement of the winding up subject to a
deduction from those shares in respect of which there are monies due, of all monies payable
to the Company for unpaid calls or otherwise. This Article is without prejudice to the
rights of the holders of shares issued upon special terms and conditions.
|
149. |
Subject to these Articles, if the Company shall be wound up the liquidator may, with the
sanction of a Special Resolution of the Company 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) and may, for such purpose 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 shares. 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 as the liquidator, with the like sanction shall think fit, but
so that no Member shall be compelled to accept any shares or other securities whereon there is
any liability.
|
150. |
Subject to the Statutes and these Articles, the Company may at any time and from time to time
by Special Resolution alter or amend these Articles or the Memorandum of Association of the
Company, in whole or in part, or change the name of the Company.
|
151. |
The Company may by Special Resolution resolve to be registered by way of continuation in a
jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time
being incorporated, registered or existing. In furtherance of a resolution adopted pursuant
to this Article, the Directors may cause an application to be made to the Registrar of
Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which
it is for the time being incorporated, registered or existing and may cause all such further
steps as they consider appropriate to be taken to effect the transfer by way of continuation
of the Company.
|
24
A. |
MPEL
has informed the
PROMISSORY SELLERS
that it has no more interest
in buying the said shares.
|
B. |
The parties reached an Agreement and now desire to provide for the
termination of the Promissory Transfer of Shares Agreement and the
PROMISSORY
SELLERS
agreed to return the Deposit to
MPEL
;
|
DOUBLE MARGIN LIMITED | LEONG ON KEI, aka ANGELA LEONG : | |||||||||
|
||||||||||
s/d
|
s/d | |||||||||
|
||||||||||
By:
|
Li Chi Keung | By: | Leong On Kei also known as Angela Leong | |||||||
|
|
|
||||||||
|
||||||||||
Title:
|
Director | Title: | Director | |||||||
|
|
|
||||||||
|
||||||||||
MPEL (MACAU PENINSULA) LIMITED | SOCIEDADE DE FOMENTO PREDIAL OMAR, LIMITADA, | |||||||||
|
||||||||||
s/d
|
s/d | |||||||||
|
||||||||||
By:
|
Chung Yuk Man | By: | Leong On Kei also known as Angela Leong | |||||||
|
|
|
||||||||
|
Li Chi Keung | |||||||||
|
|
|||||||||
|
||||||||||
Title:
|
Director | Title: | Directors | |||||||
|
|
|
2
3
4
5
6
7
8
9
10
11
12
13
|
|
14
Casino
|
with gross construction area of 2,200 sq.m | |
5
star Hotel
|
with gross construction area of 260,956 sq.m | |
4
star Hotel
|
with gross construction area of 46,920 sq.m | |
5
star Apartment Hotel
|
with gross construction area of 106,882 sq.m | |
Parking ( 5 star Hotel)
|
with gross construction area of 43,182 sq.m | |
Parking (4 star Hotel)
|
with gross construction area of 1,928 sq.m | |
Parking
(5 star Apartment Hotel)
|
with gross construction area of 7,353 sq.m | |
External area
|
with an area of 45,735 sq.m |
1) Casino
|
||
2,200 m2 x MOP15.00/ sq.m
|
MOP33,000 | |
2) 5 star Hotel
|
||
260,956 m2 x MOP15.00/sq.m
|
MOP3,914,340.00 |
3) 4 star Hotel
|
||
46,920 m2 x 15.00/ sq.m
|
MOP 703,800.00 | |
4) 5
star Apartment Hotel
|
||
106,882 m2 x MOP15.00/ sq.m
|
MOP 1,603,230.00 | |
5) Parking (5 star Hotel)
|
||
43,182 m2 x MOP10.00/ sq.m
|
MOP431,820.00 | |
6) Parking (4 star Hotel)
|
||
1,982 m2 x MOP10.00/ sq.m
|
MOP19,280.00 | |
7)
Parking (5 star Apartment Hotel)
|
||
7,353 m2 x MOP10.00/ sq.m
|
MOP73,530.00 | |
8)
External area
|
||
45,735/m2 x MOP10.00/ sq.m
|
MOP457,350.00 |
1 |
MPEL Holdings Limited,
incorporated in the Cayman Islands
|
|
2 |
MPEL International Limited,
incorporated in the Cayman Islands
|
|
3 |
MPEL Nominee One Limited,
incorporated in the Cayman Islands
|
|
4 |
MPEL Investments Limited,
incorporated in the Cayman Islands
|
|
5 |
Melco Crown Gaming (Macau)
Limited, incorporated in the Macau Special Administrative
Region of the Peoples Republic of China
|
|
6 |
Melco Crown
(COD) Hotels Limited, incorporated in the Macau Special Administrative
Region of the Peoples Republic of China
|
|
7 |
Melco Crown
(COD) Developments Limited, incorporated in the Macau Special Administrative
Region of the Peoples Republic of China
|
|
8 |
Altira Hotel Limited,
incorporated in the Macau Special Administrative Region of the Peoples
Republic of China
|
I. |
Introduction
|
A. |
Purpose
|
||
This Code of Business Conduct and Ethics (the
Code
) was adopted by the Board of
Directors (the
Board
) of Melco Crown Entertainment Limited (
MCE
).
|
|||
This Code contains general guidelines for conducting the business of MCE and its
subsidiaries consistent with the highest standards of business ethics. To the
extent this Code requires a higher standard than required by commercial practice or
applicable laws, rules or regulations, we will adhere to these higher standards.
|
|||
This Code applies to all of the directors, officers, employees, agents and
subcontractors of MCE and its subsidiaries (which, unless the context otherwise
requires, are collectively referred to as the
Company
in this Code). We refer to
all persons covered by this Code as Company employees or simply employees. All
references to you shall be references to the employees. We also refer to our
Chief Executive Officer, our Chief Operating Officer, our Chief Financial Officer
and the heads of our business units as our principal officers.
|
B. |
Seeking Help and Information
|
This Code is not intended to be a comprehensive rulebook and cannot address every
situation that you may face. If you feel uncomfortable about a situation or have
any doubts about whether it is consistent with the Companys ethical standards, seek
help. We encourage you to contact the Human Resources department for help. The
Chief Legal Officer of the Company, has initially been appointed by the Board as the
Compliance Officer for the Company.
|
C. |
Reporting Violations of the Code
|
All employees have a duty to report any known or suspected violation of this Code,
including any violation of the laws, rules, regulations or policies that apply to
the Company. If you know of or suspect a violation of this Code, immediately report
the conduct to your supervisor, who will work with you to investigate your concern
or direct your concern to the appropriate department within the Company. If you do
not feel comfortable reporting the conduct to your supervisor or you do not get a
satisfactory response, you may contact your Human Resources Office directly or
submit your complaint to our hotline or via email set up under our Procedures for
Handling Complaints and Whistleblowing. All reports of known or suspected
violations of applicable laws or this Code will be handled sensitively and with
appropriate confidentiality. The Company will protect your confidentiality to the
extent possible, consistent with law and the Companys need to investigate your
concern.
|
This Code will be enforced on a uniform basis for everyone, without regard to an
employees position within the Company. It is Company policy that any employee who
violates this Code will be subject to appropriate discipline, which may include
termination of employment. This determination will be based upon the facts and
circumstances of each particular situation. An employee accused of violating this
Code will be given an opportunity to present his or her version of the events at
issue prior to any determination of appropriate discipline. Employees who violate
any applicable law or this Code may become subject to civil damages, criminal
fines and prison terms. The Company may also face substantial fines and penalties
and may incur damage to its reputation and standing in the community. If your
conduct as a representative of the Company does not comply with applicable laws or
with this Code, it may result in serious consequences for both you and the Company.
|
D. |
Policy Against Retaliation
|
In no event will there be any retaliation against someone for reporting an activity
that he or she in good faith believes to be a violation of any law, rule or
regulation. Any supervisor or other employee intimidating or imposing sanctions on
an employee for reporting a matter will be disciplined, which may include
termination of employment.
|
Employees should know that it is a crime to retaliate against a person, including
with respect to their employment, for providing truthful information to a law
enforcement officer relating to the possible commission of any violation of law.
Employees who believe that they have been retaliated against by the Company, its
employees, contractors, subcontractors or agents, for providing information to or
assisting in an investigation conducted by a governmental authority or a person with
supervisory authority over the employee (or another employee who has the authority
to investigate or terminate misconduct) in connection with conduct that the employee
reasonably believes constitutes a violation of rule or law, may seek redress through
governmental agencies.
|
It is important to note that our policy against retaliation is to protect employees
engaging in responsible reporting of activities which they, in good faith, believe
are in violation of company policies or legal rules and regulations. However, it is
equally important for the Company to safeguard our employees from malicious
accusations based on unfounded information which the person reporting the activity
knows is untrue. An employee who files a report against another employee knowing
that the report contains false information or allegations will be subject to
internal review and appropriate discipline.
|
E. |
Waivers of the Code
|
Employees should understand that waivers or exceptions to our Code will be granted
only in advance and only under exceptional circumstances. Waivers of this Code for
employees may be made only by an executive officer of the Company. Any waiver of
this Code for our directors, executive officers or other principal officers may be
made only by the Board and will be disclosed to the public as required by applicable
laws or the rules of the Nasdaq.
|
II. |
Internal and External Dealings
|
A. |
Patrons
|
The Company seeks to provide excellent service to all third parties (
Patrons
) with
whom it conducts business. To this end, the employees of the Company shall abide by
the following principles.
|
|
Act appropriately and in good faith in its dealings with the Companys
patrons.
|
|
Respect the views of the Companys patrons, including suggestions and
requests made by the patrons concerning services offered by the Company.
Moreover, the Company shall seek to address all customer complaints promptly
and fairly.
|
|
Provide the Companys patrons with all facts which the patrons should be
aware of concerning the services offered by the Company.
|
The employees shall maintain the confidentiality of information entrusted to them by
the Company or its patrons, except when disclosure is duly authorized or legally
mandated.
Confidential information includes all non-public information that may be of use to
the Companys competitors, or harmful to the Company or its patrons, if disclosed.
|
2
B. |
Shareholders
|
The Company shall endeavor to maximize shareholder value. The employees of the
Company shall implement the following principles.
|
|
The Company shall seek to maximize shareholder value by achieving
profitability through sound management.
|
|
The Company shall respect the rights of its shareholders, including the
right to obtain adequate access to information which the Company is required by
law to disclose. Disclosure about the Companys affairs, operations and
financial condition shall be made in accordance with the Companys Guidelines
for Corporate Communications and Disclosure Controls and Procedures.
|
C. |
Employment Practices
|
The Company and the employees shall seek to create a workplace environment that is
harmonious, respectful of the rights of all employees, and conducive to attaining
excellence in the quality of service provided to the Companys patrons. The
employees of the Company shall respect each other as a member of the same community,
and shall endeavor to create and maintain a harmonious corporate culture. To
achieve this objective, the following principles shall be implemented at all times.
|
|
The Company shall not engage in any discriminatory employment practice,
which is not in compliance with applicable laws.
|
|
Sexual harassment is strictly prohibited on the part of the employees as
well as any party providing services to the Company, including temporary
workers, independent contractors or other professional service providers of the
Company.
|
|
Decisions regarding employees shall be made taking into consideration all
relevant factors such as market conditions, business requirements and
performance of the Company as well as other relevant factors such as
performance, capability, effort and degree of contribution made by the
employees concerned.
|
D. |
Competitors and Business Partners
|
The Company prides itself on being a responsible corporate citizen. The Company
shall continue to abide by the following principles.
|
|
The Company shall respect its competitors and compete fairly and honestly
with them. The Company shall not seek any competitive advantage obtained
through unethical or illegal means.
|
|
The Company shall not take unfair advantage of any person through
concealment, manipulation or abuse of privileged information, misrepresentation
of material facts or any unfair business practice.
|
3
III. |
Conflicts of Interest
|
A. |
Identifying Potential Conflicts of Interest
|
A conflict of interest can occur when an employees private interest interferes, or
appears to interfere, with the interests of the Company as a whole. Such conflicts
of interest can undermine our business judgment and our responsibility to the
Company and threaten the Companys business and reputation. Accordingly, all
apparent, potential, and actual conflicts of interest should be scrupulously avoided
and any transactions between an employee and the Company which involves a potential
conflict of interest should only be entered into after you receive the appropriate
approval. You should refer all requests for such approvals to the Human Resources
department.
|
Identifying potential conflicts of interest may not always be clear-cut. The
following situations are examples of potential conflicts of interest:
|
|
Outside Employment
. No employee should be employed by, serve as a
director of, or provide any services to a company that is a material customer
or supplier to, or any competitor of, the Company.
|
|
Improper Personal Benefits
. No employee should obtain any material
(as to him or her) personal benefits or favors because of his or her position
with the Company. Please see Gifts and Entertainment below for additional
guidelines in this area.
|
|
Personal Interests
. No employee shall have a direct or indirect
personal interest in a transaction involving the Company, except when the
interest has been fully disclosed to and approved by the Company.
|
|
Financial Interests
. No employee should have a financial interest
(ownership or otherwise) in any company that is a material customer, supplier
or competitor of the Company, except when the interest has been fully disclosed
to and approved by the Company. However, it is not typically considered a
conflict of interest (and therefore, prior approval is not required) to have an
interest of less than 1% of the outstanding shares of a publicly traded
company.
|
|
Loans or Other Financial Transactions
. No employee should obtain
loans or guarantees of personal obligations from, or enter into any other
personal financial transaction with, the Company or any company that is a
material customer or supplier to, or any competitor of, the Company. This
guideline does not prohibit arms-length transactions with banks, brokerage
firms or other financial institutions.
|
|
Service on Boards and Committees
. No employee should serve on a
board of directors or trustees or on a committee of any entity (whether profit
or not-for-profit) whose interests reasonably would be expected to conflict
with those of the Company.
|
|
Actions of Family Members
. The actions of family members outside
the workplace may also give rise to the conflicts of interest described above
because they may influence an employees objectivity in making decisions on
behalf of the Company. For purposes of this Code, family members include
your spouse or life-partner, brothers, sisters and parents, in-laws and
children whether such relationships are by blood or adoption. Please see
Family Members Working in the Industry below for additional guidelines in
this area.
|
|
Outside Activity
. No employee shall engage in any outside activity
that materially detracts from or interferes with the performance of his or her
services to the Company.
|
4
|
Personal Conducts
. In their dealings with internal parties (such as
other employees and directors of the Company) and external parties (such as
patrons or employees, officers, directors, contractors and shareholders of
customers, suppliers, vendors and investors), employees should conduct
themselves in accordance with our communitys standards of integrity, honesty
and good morals and should avoid any act involving moral turpitude or any act
that may adversely affect the image or reputation of the Company.
|
For purposes of this Code, a company is a material customer if the company has
made payments to the Company in the past year in excess of US$200,000 or 5% of the
customers gross revenues, whichever is greater. A company is a material supplier
if the company has received payments from the Company in the past year in excess of
$200,000 or 5% of the suppliers gross revenues, whichever is greater. A company is
a material competitor if the company competes in the Companys line of business
and has annual gross revenues from such line of business in excess of US$10,000,000.
For purposes of this Code, Melco International Development Limited and its
subsidiaries (
Melco
), Crown Limited and its subsidiaries (
Crown
), and any other
joint venture entities of Melco and Crown are not considered to be material
competitors, suppliers or patrons.
|
B. |
Disclosure of Conflicts of Interest
|
The Company requires that employees disclose any situations that reasonably would be
expected to give rise to a conflict of interest. If you suspect that you have a
conflict of interest, or something that others could reasonably perceive as a
conflict of interest, you must report it to the Human Resources Department. The
Human Resources department will work with you to determine whether you have a
conflict of interest, or will direct your report to the appropriate department in
the Company, and, if a conflict is determined to exist, you will be assisted in
determining how best to address the conflict. Although conflicts of interest are
not automatically prohibited, they are not desirable and may only be waived as
described in Waivers of the Code above.
|
C. |
Family Members Working in the Industry
|
You may find yourself in a situation where (i) your Family Member is a competitor,
supplier, guest, patron, visitor or tenant of the Company or is employed by one or
(ii) your Family Member is also employed by the Company. Such situations are not
prohibited, but they call for extra sensitivity to security, confidentiality and
potential conflicts of interest.
|
There are several factors to consider in assessing such a situation. Among them:
the relationship between the Company and the other company; the nature of your
responsibilities as a Company employee and those of the other person; and the access
each of you has to your respective employers confidential information. Such a
situation, however harmless it may appear to you, could arouse suspicions among your
colleagues that might affect your working relationships. The very appearance of a
conflict of interest can create problems, regardless of the propriety of your
behavior.
|
To remove any such doubts or suspicions, you must disclose your specific situation
to the Human Resources department to assess the nature and extent of any concern and
how it can be resolved. In some instances, any risk to the Companys interests is
sufficiently remote that the Human Resources department may only remind you to guard
against inadvertently disclosing Company confidential information and not to be
involved in decisions on behalf of the Company that involve the other company.
|
D. |
Presence in Gaming Areas
|
In general, employees of the Companys gaming operations may only enter the gaming
areas operated by the Company in the course of their normal work activities.
Employees should refer to and strictly comply with the policies of the relevant
business units related to access to
gaming areas. Employees of non-gaming operations and their guests may enter gaming
areas operated by the Company but they may not engage in gaming activities in such
venues.
|
5
IV. |
Gifts and Entertainment
|
|
The giving and receiving of gifts is a worthwhile and acceptable business practice when
performed within the boundaries set forth by this Code and applicable laws and regulations.
Appropriate business gifts and entertainment are welcome courtesies designed to build
relationships and understanding among business partners. However, gifts and entertainment
should not compromise, or appear to compromise, your ability to make objective and fair
business decisions.
|
||
When you are providing a gift, entertainment or other accommodation in connection with
Company business, you must do so in a manner that is in good taste and without excessive
expense. Except for complimentary goods and services customarily provided to patrons in the
ordinary course of the Companys business, you may not furnish or offer to furnish any gift
that is of more than token value or that goes beyond the common courtesies associated with
accepted business practices. You should follow the below guidelines for receiving gifts, in
determining when it is appropriate to give gifts and when prior written approval from the
Human Resources department is required.
|
||
You must be particularly sensitive in considering a gift or entertainment for a governmental
official, as such expenditures are subject to strict rules and regulations under the laws of
the United States and other jurisdictions where the Company operates. As described in
Section VIII.B of this Code, any expenditures or benefits conferred upon governmental
officials must comply with the requirements of the U.S. Foreign Corrupt Practices Act. A
gift or entertainment that may be construed as a bribe, kickback or other improper payment
may not be given under any circumstances.
|
||
Our suppliers and tenants likely have gift and entertainment policies of their own. You
must be careful never to provide a gift or entertainment that you know violates the other
companys gift and entertainment policy.
|
||
It is your responsibility to use good judgment in this area. As a general rule, you may
give or receive gifts or entertainment to or from patrons or suppliers only if the value of
such gift or entertainment is not unreasonable and such gift or entertainment would not be
viewed as an inducement to or reward for any particular business decision. All gifts and
entertainment expenses should be accurately accounted for on expense reports, including in
the nature and purpose of the expenditure. The following specific examples may be helpful:
|
|
Meals and Entertainment
. You may occasionally accept or give meals,
refreshments or other entertainment if:
|
|
The items are of reasonable value;
|
|
The purpose of the meeting or attendance at the event is business related;
and
|
|
The expenses would be paid by the Company as a reasonable business expense
if not paid for by another party.
|
Entertainment of reasonable value may include food and tickets for sporting and
cultural events if they are generally offered to other patrons, suppliers or
vendors.
|
All gifts and entertainment for governmental officials, as defined in Section VIII.B
below, must be pre-approved by your supervisor. As a general rule, gifts and
entertainment for governmental officials should not exceed
HKD1,200
(or its
equivalence in other currency) (the
Gift Limit
) per person and should not be given
on a frequent basis to any given government official. When calculating the cost of
entertainment for governmental officials, the total cost of the event is subject to
the Gift Limit (
e.g.
, the combined expense of tickets, food, beverages and travel
should not exceed Gift Limit).
|
6
|
Advertising and Promotional Materials
. You may occasionally accept or give
advertising or promotional materials of nominal value.
|
||
|
Personal Gifts
. You may accept or give personal gifts of reasonable value
that are related to recognized special occasions such as a cultural event, celebration
or holiday (for example, Chinese New Year, Christmas, Mid-Autumn Festival and Chung
Yeung Festival). A gift is also acceptable if it is based on a family or personal
relationship and unrelated to the business between the individuals. If you are unsure
whether a gift is acceptable, please report the receipt of the gift to the Human
Resources department for further guidance.
|
||
|
Gifts Rewarding Service or Accomplishment
. You may accept a gift from a
civic, charitable or religious organization specifically related to your service or
accomplishment.
|
||
|
Travel
. Any gift that involves regional or international travel shall only
be accepted after clearance from your supervisor.
|
This guideline does not prohibit authorized employees in designated job categories from
accepting traditional customer gratuities (
tips
).
|
You should make every effort to refuse or return a gift that is beyond these permissible
guidelines. If it would be inappropriate to refuse a gift or you are unable to return a
gift, you should promptly report the gift to the Human Resources department. The Human
Resources department will bring the gift to the attention of the Compliance Officer, who may
require you to donate the gift to an appropriate community organization.
|
If you provide any gift, entertainment or other accommodation in connection with the
Companys business, you must do so in a manner that is in good taste, without excessive
expense and in strict compliance with applicable laws. In particular, employees are
reminded that Macau civil servants have a duty to report the acceptance of any gifts of
whatever value to their superiors. In the event the gifts accepted are found to be a direct
or indirect advantage to such civil servant, the Company and the employee may be subject to
criminal prosecution and the employee may be subject to disciplinary action, up to and
including termination of employment.
|
V. |
Confidential, Proprietary Information
|
|
One of the Companys most valuable assets is information. Employees should maintain the
confidentiality of information (whether or not it is considered proprietary) entrusted to
them not only by the Company, but also by suppliers, patrons and others related to our
business. Confidential information includes all non-public information that might be of use
to our competitors or harmful to the Company, or its patrons or suppliers, if disclosed.
Examples of confidential information include trade secrets, new product or marketing plans,
customer lists, research and development ideas, manufacturing processes, or acquisition or
divestiture prospects.
|
||
Employees should take steps to safeguard confidential information by keeping such
information secure, limiting access to such information to those employees who have a need
to know in order to do their job, and avoiding discussion of confidential information in
public areas, for example, in elevators, on planes, and on mobile phones.
|
||
Confidential information may be disclosed to others when disclosure is authorized by the
Company or legally mandated. The obligation to preserve confidential information is
ongoing, even after termination of employment.
|
VI. |
Company Records
|
|
Accurate and reliable records are crucial to our business. Our records are the basis of our
earnings statements, financial reports and other disclosures to the public and guide our
business decision-making and strategic planning. Company records include booking
information, payroll, timecards, travel and
expense reports, e-mails, meeting minutes, accounting and financial data, measurement and
performance records, electronic data files and all other records maintained in the ordinary
course of our business.
|
7
All Company records must be complete, accurate and reliable. Undisclosed or unrecorded
funds, payments or receipts are inconsistent with our business practices and are prohibited.
You are responsible for understanding and complying with our record keeping policy.
|
VII. |
Accuracy of Financial Reports and Other Public communications
|
|
As a public company we are subject to various securities laws, regulations and reporting
obligations. These laws, regulations and obligations and our policies require the
disclosure of accurate and complete information regarding the Companys business, financial
condition and results of operations. Inaccurate, incomplete or untimely reporting will not
be tolerated and can severely damage the Company and result in legal liability.
|
||
The Companys principal officers and other employees working in the Finance Department have
a special responsibility to ensure that all of our financial disclosures are full, fair,
accurate, timely and understandable. These employees must understand and strictly comply
with generally accepted accounting principles and all standards, laws and regulations for
accounting and financial reporting of transactions, estimates and forecasts. This policy
applies to all public disclosure of material information about the Company, including
written disclosures, oral statements, visual presentations, press conferences and media
calls. Please read the Companys Disclosure Controls and Procedures and Guidelines for
Corporate Communication for more information.
|
||
In addition, U.S. federal securities law requires the Company to maintain accurate internal
books and records and to devise and maintain an adequate system of internal accounting
controls. The Securities and Exchange Commission (
SEC
) has supplemented the statutory
requirements by adopting rules that can impose liability on the Company for any inaccuracies
in its books and records, even if not material and even if inadvertent. In addition,
individual employees can be liable for (1) falsifying records or accounts subject to the
above requirements and (2) making any materially false, misleading, or incomplete statement
to an accountant in connection with an audit or any filing with the SEC. These provisions
reflect the SECs intent to discourage officers, directors, and other persons with access to
the Companys books and records from taking action that might result in the communication of
materially misleading financial information to the investing public.
|
VIII. |
Compliance with Laws, Rules and Regulations
|
|
Each employee has an obligation to comply with all laws, rules and regulations applicable to
the Companys business. These include laws covering bribery and kickbacks, copyrights,
trademarks and trade secrets, information privacy, insider trading, illegal political
contributions, antitrust prohibitions, foreign corrupt practices, offering or receiving
gratuities, environmental hazards, employment discrimination or harassment, occupational
health and safety, false or misleading financial information and misuse of corporate assets.
These laws also include Macau laws requiring our employees to report any event that may
affect the suitability of our Macau subsidiary which is a holder of our gaming
subconcession, or its direct or indirect shareholders, directors or employees, to conduct a
gaming business in Macau, and to provide all information required by Macau gaming regulators
pursuant to their supervisory authority of our gaming business in Macau. Any such required
report should be made to the Human Resources Department.
|
||
You are expected to understand and comply with all laws, rules and regulations that apply to
your job position. It is the Companys policy to abide by the national and local laws of
our host nations and communities. The fact that in some countries certain standards of
conduct are legally prohibited, but these prohibitions are not enforced in practice, or
their violation is not subject to public criticism or censure, will not excuse any illegal
action by an employee.
|
8
A. |
Compliance with Insider Trading Laws
|
Employees are prohibited from trading in the stock or other securities of the
Company while in possession of material, nonpublic information about the Company.
In addition, employees are prohibited from recommending, tipping or suggesting
that anyone else buy or sell stock or other securities of the Company on the basis
of material, nonpublic information. Employees who obtain material nonpublic
information about another company in the course of their employment are prohibited
from trading in the stock or securities of the other company while in possession of
such information or tipping others to trade on the basis of such information.
Violation of insider trading laws can result in severe fines and criminal penalties,
as well as disciplinary action by the Company, up to and including termination of
employment.
|
Please refer to the Companys Statement of Policies and Procedures Governing
Material, Non-Public Information and the Prevention in Insider Trading for more
information.
|
B. |
The Foreign Corrupt Practices Act
|
The Foreign Corrupt Practices Act (the
FCPA
) prohibits the Company and its
employees and agents from offering or giving money or any other item of value to win
or retain business or to influence any act or decision of any governmental official.
A
governmental official
includes not only national, regional, state, and local
elected and appointed government employees but also political parties, political
party officials, candidates for political office, employees of state-owned
companies, relatives and agents of government officials acting on their behalf, and
representatives of quasi-governmental and international organizations. Stated more
concisely, the FCPA prohibits the payment of bribes, kickback or other inducements
to foreign (i.e., non-U.S.) governmental officials. This prohibition also extends
to payments to a sales representative, agent or other third party if there is reason
to believe that the payment will be used indirectly for a prohibited payment to
governmental officials. Violation of the FCPA is a crime that can result in severe
fines and criminal penalties for the employee and the Company, as well as
disciplinary action by the Company, up to and including termination of employment.
|
C. |
Compliance with Laws against Money Laundering
|
Employees are prohibited from engaging in activities which would amount to
money-laundering. Violation of laws against money laundering can result in
severe fines and criminal penalties, as well as disciplinary action by the Company,
up to and including termination of employment. In addition, employees should comply
with the Companys policy against money-laundering.
|
IX. |
Fair Dealing
|
|
The Companys success depends on building productive relationships with one another and
third parties on honesty, integrity, ethical behavior and mutual trust. Every employee
should endeavor to deal fairly with each of our patrons, suppliers, competitors and other
employees. No employee should take unfair advantage of anyone through manipulation,
concealment, abuse of privileged information, misrepresentation of material facts, or any
other unfair-dealing practices.
|
X. |
Protection and Proper Use of Assets
|
|
Proper and efficient use of Company, supplier, customer and other third party assets, such
as electronic communication systems, information (proprietary or otherwise), material,
facilities and equipment, as well as intangible assets, is each employees responsibility.
Employees must not use such assets for personal profit for themselves or others. In
addition, employees must act in a manner to protect such assets from loss, damage, misuse,
theft, removal and waste. Finally, employees must ensure that such
assets are used only for legitimate business purposes. However, in limited instances,
Company assets may be used for other purposes approved by management.
|
9
XI. |
Conclusion
|
|
This Code of Business Conduct and Ethics contains general guidelines for conducting the
business of the Company consistent with the highest standards of business ethics. If you
have any questions about these guidelines, please contact the Human Resources department.
We expect all Company employees to adhere to these standards.
|
||
This Code of Business Conduct and Ethics shall be our code of ethics within the meaning of
Section 406 of the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder.
|
||
The Code does not in any way constitute an employment contract or an assurance of continued
employment. It is for the sole and exclusive benefit of the Company and may not be used or
relied upon by any other party. The Company may modify or repeal the provisions of the Code
or adopt a new Code at any time it deems appropriate, with or without notice.
|
|
|
|||
|
||||
|
||||
|
||||
|
||||
|
||||
|
10
1. |
I have reviewed this annual report on Form 20-F of Melco Crown Entertainment Limited;
|
|
2. |
Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this report;
|
|
3. |
Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the company as of, and for, the periods presented in this report;
|
|
4. |
The companys other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the company and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
company, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in
which this report is being prepared;
|
||
(b) |
Designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles;
|
||
(c) |
Evaluated the effectiveness of the companys disclosure controls and
procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation, and
|
||
(d) |
Disclosed in this report any change in the companys internal control
over financial reporting that occurred during the period covered by
the annual report that has materially affected, or is reasonably
likely to materially affect, the companys internal control over
financial reporting; and
|
5. |
The companys other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the companys auditors and the audit committee of the
companys board of directors (or persons performing the equivalent
functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the companys ability to record,
process, summarize and report financial information; and
|
||
(b) |
Any fraud, whether or not material, that involves management or other
employees who have a significant role in the companys internal
control over financial reporting.
|
By: | /s/ Lawrence Ho | |||||
|
Name: | Lawrence Ho | ||||
|
Title: | Co-Chairman and Chief Executive Officer |
1. |
I have reviewed this annual report on Form 20-F of Melco Crown Entertainment Limited;
|
|
2. |
Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this report;
|
|
3. |
Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the company as of, and for, the periods presented in this report;
|
|
4. |
The companys other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the company and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
company, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in
which this report is being prepared;
|
||
(b) |
Designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles;
|
||
(c) |
Evaluated the effectiveness of the companys disclosure controls and
procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation, and
|
||
(d) |
Disclosed in this report any change in the companys internal control
over financial reporting that occurred during the period covered by
the annual report that has materially affected, or is reasonably
likely to materially affect, the companys internal control over
financial reporting; and
|
5. |
The companys other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the companys auditors and the audit committee of the
companys board of directors (or persons performing the equivalent
functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the companys ability to record,
process, summarize and report financial information; and
|
||
(b) |
Any fraud, whether or not material, that involves management or other
employees who have a significant role in the companys internal
control over financial reporting.
|
By: | /s/ Simon Dewhurst | |||||
|
Name: | Simon Dewhurst | ||||
|
Title: |
Executive Vice President and
Chief Financial Officer |
1. |
The Report fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934; and
|
|
2. |
The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
|
By: | /s/ Lawrence Ho | |||||
|
Name: | Lawrence Ho | ||||
|
Title: | Co-Chairman and Chief Executive Officer |
1. |
The Report fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934; and
|
|
2. |
The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
|
By: | /s/ Simon Dewhurst | |||||
|
Name: | Simon Dewhurst | ||||
|
Title: |
Executive Vice President and
Chief Financial Officer |
31 March 2010 | Our Ref: DW/CW/M4237-H01577 |