AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 8, 2000
REGISTRATION NO. 333-48280
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 1
TO
FORM F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
WORLD GAMING PLC
(Exact name of registrant as specified in its charter)
ENGLAND AND WALES 7371 NONE
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification Number)
Incorporation or Organization)
THE CIBC BANKING CENTRE
OLD PARHAM ROAD
P.O. BOX 3265
ST. JOHN'S, ANTIGUA, WEST INDIES
(268) 480-1650
(Address, including zip code and telephone number, including area code, of
Registrant's principal executive offices)
FRED HAZELL
MANAGING DIRECTOR
WORLD GAMING PLC
THE CIBC BANKING CENTRE
OLD PARHAM ROAD
P.O. BOX 3265
ST. JOHN'S, ANTIGUA, WEST INDIES
(268) 480-1650
(Name, address, including zip code and telephone number, including area code, of
agent for service)
------------------------------
COPIES TO:
SUSAN ELIZABETH BREEN JEFFREY R. HOULE, ESQ.
JONATHAN RICHARD LOVITT FIORELLO J.P. VICENCIO, JR., ESQ.
ORCHARD SOLICITORS GREENBERG TRAURIG, LLP
99 BISHOPSGATE 1750 TYSONS BOULEVARD
LONDON EC2M 3YU SUITE 1200
ENGLAND MCLEAN, VIRGINIA 22102
(011-44) 20-7392-0200 (703) 749-1300
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
------------------------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
------------------------------
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM REGISTRATION
REGISTERED REGISTERED SHARE (1) OFFERING PRICE (1) FEE (2)
Ordinary Shares, nominal value L0.01
per share........................... 32,193,181 $1.375 44,265,624 $11,687
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, based on the
closing sales price of the class A common stock of Starnet Communications
International (DE) Inc. as quoted on the Over-the-Counter Bulletin Board
service under the ticker symbol SNMM.OB on October 16, 2000.
(2) Previously paid.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[LOGO]
November 10, 2000
Dear Fellow Shareholder:
We are pleased to present a proposal for reorganizing your company, Starnet
Communications International (DE) Inc., so that it will become a wholly-owned
subsidiary of a new holding company incorporated in England and Wales, part of
the United Kingdom. We believe the reorganization will add shareholder value
over time as it will enable our company to gain business advantages that are not
currently available under our current corporate structure. The reorganization of
our company will offer us:
- an environment more supportive of companies which are involved in the
online gaming industry than in the U.S.;
- an enhanced ability to pursue business combinations with non-U.S.
entities;
- greater flexibility in structuring European and international gaming
opportunities; and
- improved access to sophisticated capital markets.
In addition, after the reorganization, we will have the flexibility of
conducting new or continuing operations out of our new English company, and in
such case our earnings will be taxable in the United States only on that portion
of our worldwide income that is attributable to the United States, United States
subsidiaries or non-United States subsidiaries owned by a United States
subsidiary to the extent the income is earned in the United States (directly or
indirectly through a partnership of limited liability company) or is distributed
to the United States subsidiary. Of course, World Gaming Plc's worldwide income
and gains will be taxable in the U.K. subject to any double taxation relief for
tax paid outside of the U.K.
If the reorganization is approved, your relative economic ownership in the
company will remain the same as your current ownership in Starnet Communications
International (DE) Inc. However, you will then hold ordinary shares in an
English company, World Gaming Plc. Our board of directors does not intend to
consummate the reorganization if the ordinary shares of World Gaming Plc are not
admitted or authorized to trade on a stock exchange or trading facility in the
U.K., U.S. or elsewhere, either directly as ordinary shares or as American
depositary receipts.
This proxy statement (which includes a prospectus covering the issuance to
you in the reorganization of new ordinary shares of World Gaming Plc) provides
you with detailed information regarding the reorganization.
Along with the benefits mentioned above, this transaction contains certain
important changes to your rights as shareholders and is not without some risk.
While we believe the potential benefits outweigh any change in your rights and
any possible risks, we encourage you to read this entire document including the
agreement and plan of reorganization annexed to this proxy statement/ prospectus
carefully.
OUR BOARD OF DIRECTORS BELIEVES THAT THIS PROPOSAL IS FAVORABLE FOR OUR
COMPANY AND FOR YOU AND RECOMMENDS AND APPROVES THIS PROPOSAL FOR
REORGANIZATION.
Your support and your vote for the reorganization matter greatly. Whether or
not you plan to attend the special meeting, please complete, date and sign the
enclosed proxy card and mail it promptly in the enclosed return envelope. The
affirmative vote of a majority of all outstanding shares of our common stock is
required for approval of the reorganization, so it is extremely important that
you respond. We urge you to join us in supporting this important opportunity.
Sincerely,
/s/ FRED HAZELL
--------------------------------------
Fred Hazell
Managing Director
YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 12. NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATOR HAS
APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED UNDER THIS PROXY
STATEMENT/PROSPECTUS OR DETERMINED IF THIS PROXY STATEMENT/PROSPECTUS IS
ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This proxy statement/prospectus is dated November 10, 2000 and is first
being mailed to stockholders on or about November 10, 2000.
ADDITIONAL INFORMATION
This proxy statement/prospectus incorporates business and financial
information about Starnet Communications International (DE) Inc. from other
documents that are not included in or delivered with the proxy
statement/prospectus. This information is available to you without charge upon
your written or oral request. You can obtain the documents incorporated by
reference in this proxy statement/prospectus by requesting them in writing or by
telephone at:
Starnet Communications International (DE) Inc.
The CIBC Banking Centre
Old Parham Road
P.O. Box 3265
St. John's, Antigua, West Indies
(268) 480-1650
IF YOU WOULD LIKE TO REQUEST ANY DOCUMENTS, PLEASE DO SO BY NOVEMBER 24,
2000 IN ORDER TO RECEIVE THEM BEFORE THE SPECIAL MEETING.
Please see "Where You Can Find More Information" that begins on page 52.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
[LOGO]
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS OF
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
TO BE HELD ON DECEMBER 8, 2000
To the Stockholders of STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.:
A special meeting of stockholders of Starnet Communications International
(DE) Inc. will be held at 10:00 a.m., local time, on December 8, 2000 at the
Royal Antiguan Resort, Deep Bay, St. John's, Antigua, for the following
purposes:
(1) To approve the proposed corporate reorganization whereby Starnet
Communications International (DE) Inc., a Delaware corporation, will become an
indirect wholly-owned subsidiary of a new holding company, World Gaming Plc,
which is incorporated in England and Wales, pursuant to an agreement and plan of
reorganization, a copy of which is attached as annex I to the accompanying proxy
statement/prospectus, pursuant to which WG Reorganization Sub, Inc., a
newly-formed, indirect wholly-owned subsidiary of World Gaming Plc will be
merged with and into Starnet Communications International (DE) Inc., which will
survive the merger and to authorize the board of directors to take any and all
actions deemed necessary or advisable to give effect to the reorganization; and
(2) To transact such other business as may properly be brought before the
meeting, or any adjournment or postponement of the meeting, including any
adjournment or postponement of the special meeting to another time and place for
the purposes of soliciting additional proxies to approve proposal (1) above.
The board of directors has fixed the close of business on November 1, 2000
as the record date for determining stockholders entitled to notice of, and to
vote at, the special meeting.
By order of the Board of Directors,
/s/ FRED HAZELL
--------------------------------------
Fred Hazell
Secretary
St. John's, Antigua
November 10, 2000
ALL STOCKHOLDERS ARE URGED TO ATTEND THE SPECIAL MEETING IN PERSON OR BY
PROXY. WHETHER OR NOT YOU EXPECT TO BE PRESENT AT THE MEETING, PLEASE MARK, SIGN
AND DATE THE ENCLOSED PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED POSTAGE
PAID ENVELOPE FURNISHED FOR THAT PURPOSE. IF YOU LATER DESIRE TO REVOKE YOUR
PROXY FOR ANY REASON, YOU MAY DO SO IN THE MANNER SET FORTH IN THE PROXY
STATEMENT/PROSPECTUS.
TABLE OF CONTENTS
QUESTIONS AND ANSWERS ABOUT THE
REORGANIZATION...................... 1
SUMMARY OF PROXY STATEMENT/
PROSPECTUS.......................... 4
Parties To The Reorganization....... 4
The Reorganization.................. 5
The Reorganization Agreement........ 6
Amendment/Termination; Effective
Time.............................. 6
Amendments to Stock Based Plans..... 7
Acceleration Of Some Management And
Director Compensation Benefits.... 7
Recommendation Of The Board Of
Directors......................... 7
Vote Required For Adoption.......... 7
Quorum.............................. 8
Record Date......................... 8
Trading............................. 8
Market Price........................ 8
Comparison Of Rights Of
Shareholders...................... 9
Tax Considerations.................. 9
Rights Of Dissenting Shareholders... 9
Accounting Treatment................ 9
COMPARATIVE PER SHARE DATA............ 10
SELECTED FINANCIAL DATA............... 11
RISK FACTORS.......................... 12
UNAUDITED PRO FORMA FINANCIAL
INFORMATION......................... 14
THE REORGANIZATION.................... 18
General............................. 18
Background and Reasons for the
Reorganization...................... 18
Recommendation of the Board of
Directors......................... 19
Rights of Dissenting Shareholders... 19
Amendments to Stock Based Plans..... 21
Bulletin Board Trading.............. 21
Accounting Treatment................ 21
Acceleration of Certain Compensation
Benefits............................ 22
Regulatory Approval in the U.K...... 22
THE SPECIAL MEETING................... 23
General............................. 23
Quorum.............................. 23
Record Date......................... 23
Vote Required for Adoption.......... 23
Proxies............................. 24
Solicitation of Proxies............. 24
Additional Proposal................. 25
THE REORGANIZATION AGREEMENT.......... 26
General............................. 26
Exchange of Certificates
Representing Starnet Common
Stock............................. 26
Conditions to Consummation of the
Reorganization.................... 27
Effective Time...................... 27
Amendment/Termination............... 27
STARNET COMMUNICATIONS INTERNATIONAL
(DE) INC............................ 28
Starnet Communications International
(DE) Inc.......................... 28
Price Range of Starnet
Communications International (DE)
Inc. Common Stock................. 28
World Gaming Plc.................... 29
WG International Limited............ 29
WG Reorganization Sub, Inc.......... 29
DESCRIPTION OF AUTHORIZED SHARES OF
WORLD GAMING PLC.................... 29
COMPARISON OF RIGHTS OF
SHAREHOLDERS........................ 31
Quorum; Meeting of Shareholders..... 31
Voting of Shareholders.............. 32
Preemptive Rights................... 32
Preferred Stock..................... 33
Distributions and Dividends; Stock
Repurchases......................... 33
Action by Written Consent........... 33
Indemnification of Directors and
Officers.......................... 34
Limited Liability of Directors...... 34
Interested Party Transactions....... 35
Shareholders' Suits................. 35
Shareholder Approval of Business
Combinations........................ 36
Amendment of Governing Documents.... 38
Appraisal Rights.................... 38
Ability to Bring Suits, Enforce
Judgments and Enforce U.S. Law.... 39
Inspection of Books and Records..... 39
Removal of Directors; Vacancies on
the Board of Directors............ 39
Classified Board of Directors....... 40
Content and Timing of Reports and
Notices of the Companies;
Definition of Foreign Private
Issuer............................ 40
MATERIAL TAX CONSIDERATIONS........... 42
United Kingdom Tax Consequences..... 42
Tax of World Gaming Plc............. 44
United States Federal Income Tax
Consequences...................... 45
Tax Consequences for U.S. Holders... 45
Tax Consequences for Non-U.S.
Holders........................... 50
Information Reporting and Back-up
Withholding....................... 50
MANAGEMENT............................ 51
Management of World Gaming Plc...... 51
Committees of the Board of
Directors......................... 51
LEGAL MATTERS......................... 51
EXPERTS............................... 51
WHERE YOU CAN FIND MORE INFORMATION... 52
DISCLOSURE REGARDING FORWARD LOOKING
STATEMENTS.......................... 53
APPENDIX I--Agreement and Plan of Reorganization
APPENDIX II--Section 262 of the Delaware General Corporation Law (Appraisal
Rights)
QUESTIONS AND ANSWERS ABOUT THE REORGANIZATION
Q: WHAT ARE THE PURPOSES OF THE REORGANIZATION?
A: The reorganization will allow us to avail ourselves of business and
financial advantages that are not available under our current corporate
structure. The reorganization of Starnet Communications International
(DE) Inc. by the formation of an English holding company for all of our
operating businesses and investments, would offer our company greater
flexibility in structuring international business activities. We believe the
opportunities include:
- a more favorable environment for the formation and growth of our various
businesses which are active in the online gaming industry;
- an enhanced ability to compete with non-U.S. companies involved in the
online gaming industry;
- an enhanced ability to pursue business combinations with non-U.S.
entities;
- an expansion of the investor base as our company's shares may become more
attractive to non-U.S. investors;
- increased visibility among the investment banking community arising from
its perception of the company's enhanced corporate structure; and
- improved access to sophisticated capital markets.
In addition, after the reorganization, we will have the flexibility of
conducting new or continuing operations out of our new English company and
in such case our earnings will be taxable in the United States only on that
portion of our worldwide income that is attributable to the United States,
United States subsidiaries or non-United States subsidiaries owned by a
United States subsidiary to the extent the income is earned in the United
States (directly or indirectly through a partnership of limited liability
company) or is distributed to the United States subsidiary. Of course, World
Gaming Plc's worldwide income and gains will be taxable in the U.K. subject
to any double taxation relief for tax paid outside of the U.K.
Q: HOW WOULD I BENEFIT FROM THIS CHANGE?
A: Our principal objective in this reorganization is to enhance shareholder
value by increasing the long-term profitability and opportunities of our
company.
Q: WILL I BE TAXED AS A RESULT OF THIS PROPOSAL?
A: At the time of reorganization, if you are a United States person, for U.S.
federal income tax purposes, you will be treated as if you had sold all of
your shares in Starnet Communications International (DE) Inc. in a fully
taxable transaction in which you will recognize gains and losses, if any, in
an amount equal to the difference between your tax basis in your Starnet
Communications International (DE) Inc. shares and the value of the World
Gaming Plc you receive. WE URGE YOU TO CONSULT YOUR OWN TAX ADVISERS
REGARDING YOUR PARTICULAR TAX CONSEQUENCES.
Q: WILL OUR COMPANY HAVE TO PAY TAXES AS A RESULT OF THE PROPOSAL?
A: The reorganization is structured so that it will be free of U.S. federal
income tax to our company, but involves a taxable disposal in the U.K.,
which involves a small gain taxable at rates of up to 30%.
Q: WILL THE IRS ACCEPT OUR DETERMINATION OF OUR TAX LIABILITY?
A: The IRS is not obliged to accept our determination or the methodologies we
used.
Q: HAS THE IRS RENDERED AN OPINION ON THIS TRANSACTION?
A: We are not requesting any ruling or expression of views from the IRS.
Q: WHY WERE ENGLAND AND WALES SELECTED AS THE NEW DOMICILE FOR OUR COMPANY?
A: We chose England and Wales, part of the United Kingdom, principally for its
stable and supportive environment for companies involved in the online
gaming industry and because it will provide continued access to
sophisticated capital markets and will serve as an ideal base for pursuing
European and Asian gaming opportunities.
Q: WILL THE PROPOSAL AFFECT OUR COMPANY'S CURRENT OPERATIONS AND JOBS? WHAT
ABOUT THE FUTURE?
A: This reorganization will have limited immediate effect on our operations and
employees. After the reorganization, locations of operations will be chosen
based on the needs of the business, which we expect to address independently
from where we are legally domiciled.
Q: WHAT EFFECT WILL THE REORGANIZATION HAVE ON MANAGEMENT AND DIRECTOR
COMPENSATION?
A: The reorganization will have the effect of accelerating or creating payments
due to certain executive officers and one director of Starnet Communications
International (DE) Inc. However, it is expected that all of these officers
and the affected director will execute waivers of these payments prior to
completion of the reorganization.
Q: WHAT WILL BE THE SIGNIFICANT CHANGES UPON MY RIGHTS AS A SHAREHOLDER AS A
RESULT OF THE REORGANIZATION?
A: There will be a number of significant differences in the rights of
shareholders as a result of holding shares in an English company versus a
Delaware company. These differences are discussed in the section entitled
"Comparison of Rights of Shareholders" beginning on page 31.
Q: IS A MAJORITY OF ALL SHARES REQUIRED OR ONLY OF THE SHARES THAT ARE ACTUALLY
VOTED?
A: In order for us to effect the reorganization, we need favorable votes from a
majority of all outstanding shares. Shares for which no votes are cast will
be treated as though they were voted against the reorganization, so it is
very important for all stockholders to vote.
Q: IF APPROVED, WHEN DOES THIS ALL BECOME EFFECTIVE?
A: While we currently expect the reorganization to take place soon after the
special meeting, the board of directors of Starnet Communications
International (DE) Inc. may defer for a significant time or abandon the
reorganization after the special meeting. One of the factors the board of
directors of Starnet Communications International (DE) Inc. will consider at
the time of the reorganization is whether there has been an increase in our
estimate of the costs of the reorganization. In addition, the board of
directors of Starnet Communications International (DE) Inc. does not intend
to consummate the reorganization if the ordinary shares of World Gaming Plc
are not admitted or authorized to trade on a stock exchange or trading
facility in the U.K., U.S. or elsewhere, either directly as ordinary shares
or as American depositary receipts.
Q: WHAT WILL I RECEIVE IN THE REORGANIZATION?
A: You will receive one ordinary share or equivalent of World Gaming Plc for
each share of Starnet Communications International (DE) Inc. you own. Your
relative economic ownership in our company will not change as a result of
the reorganization.
Q: SHOULD I SEND IN MY STOCK CERTIFICATES NOW?
A: No. After we complete the reorganization, we will send you instructions
explaining how to exchange your Starnet Communications International
(DE) Inc. common stock certificates for certificates for World Gaming Plc
ordinary shares.
2
Q: HOW DO I VOTE?
A: You should indicate on your proxy card how you want to vote and mail your
signed proxy card in the enclosed return envelope as soon as possible so
that your shares can be voted at the special meeting.
Q: IF MY SHARES ARE HELD IN "STREET NAME" BY MY BROKER, WILL MY BROKER VOTE MY
SHARES FOR ME?
A: No. You must instruct your broker how to vote your shares or else your
broker will not vote your shares. Follow your broker's directions as to the
procedure for voting your shares.
Q: CAN I CHANGE MY VOTE AFTER I GRANT MY PROXY?
A: Yes. You can change your vote at any time before your proxy is voted at the
special meeting. You can do this in the manner described under "The Special
Meeting-Proxies" on page 24.
Q: WHOM DO I CONTACT WITH FURTHER QUESTIONS?
A: Please call our proxy solicitor and information agent, Regan &
Associates, Inc. toll free at 1-800-737-3426, or our company at
(268) 480-1650.
3
SUMMARY OF PROXY STATEMENT/PROSPECTUS
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS DOCUMENT AND MAY NOT
CONTAIN ALL OF THE INFORMATION THAT IS IMPORTANT TO YOU. TO UNDERSTAND THE
MERGER AND THE OTHER TRANSACTIONS MORE FULLY AND FOR A MORE COMPLETE DESCRIPTION
OF THE LEGAL TERMS OF THE REORGANIZATION, YOU SHOULD READ CAREFULLY THIS ENTIRE
DOCUMENT AND THE OTHER DOCUMENTS TO WHICH WE HAVE REFERRED YOU. SEE "WHERE YOU
CAN FIND MORE INFORMATION" ON PAGE 52 OF THIS PROXY STATEMENT/PROSPECTUS. THE
ACTUAL TERMS OF THE REORGANIZATION ARE CONTAINED IN THE REORGANIZATION
AGREEMENT. THE REORGANIZATION AGREEMENT IS INCLUDED IN THIS PROXY
STATEMENT/PROSPECTUS AS ANNEX I.
IN THIS DOCUMENT, "WE," "US," "OUR" AND "OUR COMPANY" REFER TO STARNET
COMMUNICATIONS INTERNATIONAL (DE) INC. AND ITS SUBSIDIARIES OR WORLD GAMING PLC
AND ITS SUBSIDIARIES, AS THE CONTEXT REQUIRES, AND "YOU" REFERS TO THE
STOCKHOLDERS OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC. OR THE
SHAREHOLDERS OF WORLD GAMING PLC, AS THE CONTEXT REQUIRES.
Starnet Communications International (DE) Inc. has two classes of common
stock authorized, voting Class A common stock and non-voting Class B common
stock. As of the date of this proxy statement/prospectus, Starnet Communications
International (DE) Inc. has only Class A common stock outstanding. Accordingly,
references to the common stock of Starnet Communications International
(DE) Inc. below and elsewhere in this proxy statement/prospectus refer only to
such Class A common stock, unless otherwise specified.
PARTIES TO THE REORGANIZATION
(SEE PAGE 28)
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
Starnet Communications International (DE) Inc. is a St. John's,
Antigua-based holding company. Our subsidiaries and affiliates focus on the
development, production and licensing of Internet technologies for gaming
applications. Our company was incorporated in Nevada as Creative Sports
Marketing, Inc., and subsequently the name of our company was changed to Gelato
Brats Inc. in January 1997 and then to Starnet Communications International
(DE) Inc. in February 1997. We redomiciled our company to Delaware in
March 1997.
In the current fiscal year, we have announced or consummated the following
significant transactions or events:
- On September 13, 2000, we announced that Fred Hazell, our current
chairman, had been appointed as acting chief executive officer and
president following the resignation of Meldon Ellis from the same
positions. Mr. Ellis resigned to pursue other interests. Mr. Hazell has
assumed control of our day-to-day operations pending the selection of a
new chief executive officer.
- On September 1, 2000, we announced the launch of the first phase of our
Beyond2000 software on our gaming site. Beyond2000 is a comprehensive
suite of I-learning products available on the Internet. It includes
instant play and downloadable casino and lottery games, multi-player
bingo, pari-mutuel wagering and sports betting. The first phase of the
launch included Java casino, lotteries and multi-player bingo games.
Subsequent phases will include pari-mutuel wagering and new downloadable
casino, lottery and bingo products.
Our principal executive office is located at the CIBC Banking Centre, Old
Parham Road, P.O. Box 3265, St. John's, Antigua, West Indies and our telephone
number is (268) 480-1650.
4
WORLD GAMING PLC
World Gaming Plc is a company incorporated in England and Wales, initially
incorporated for the sole purpose of effecting the reorganization. It has
transacted no business to date except in connection with the reorganization and
related transactions. World Gaming Plc has issued no capital stock to date,
except for nominee shareholders holding the minimum number of ordinary shares
required upon incorporation of an English company. After the reorganization, you
will be a shareholder of World Gaming Plc.
Our principal executive offices are located at The CIBC Banking Centre, Old
Parham Road, P.O. Box 3265, St. John's, Antigua, West Indies (telephone
268-480-1650).
WG INTERNATIONAL LIMITED
WG International Limited is an English private limited company and a
wholly-owned subsidiary of World Gaming Plc. It has conducted no business to
date except in connection with the reorganization and related transactions. WG
International Limited was formed for the purpose of effecting the reorganization
and to provide flexibility to World Gaming Plc in structuring its investments
and holdings in the future. In addition, it will provide World Gaming Plc with a
European-based company which could, if necessary, guarantee the obligations of
its various subsidiaries.
WG REORGANIZATION SUB, INC.
WG Reorganization Sub, Inc. is a Delaware corporation and a wholly-owned
subsidiary of WG International Limited. It also has conducted no business to
date except in connection with the reorganization and related transactions. In
the reorganization, WG Reorganization Sub, Inc. will be merged with and into
Starnet Communications International (DE) Inc., with Starnet Communications
International (DE) Inc. surviving.
THE REORGANIZATION (SEE PAGE 18)
GENERAL
Our board of directors has approved and recommends that you approve a
proposed corporate reorganization so that we will become an indirect,
wholly-owned subsidiary of a new holding company incorporated in England and
Wales. A holder of Starnet Communications International (DE) Inc. common stock
will, after the reorganization, continue to own, as a holder of World Gaming Plc
ordinary shares, the same relative economic interest in World Gaming Plc.
However, there will be significant differences in your rights as a shareholder
of World Gaming Plc, of which the material differences are described in "Risk
Factors" and "Comparison of Rights of Shareholders."
REASONS FOR THE REORGANIZATION
The board of directors believes that the reorganization will allow our
company to avail itself of significant business and financial advantages that
are not available under the current corporate structure. Accordingly, the board
of directors believes the reorganization should have a favorable impact on the
conduct of our future business operations. In particular, the board of directors
believes that you should approve the reorganization for the following reasons:
- more favorable environment for the formation and growth of a company whose
businesses are involved in the online gaming industry;
- an enhanced ability to compete with non-U.S. companies involved in the
online gaming industry;
- an enhanced ability to pursue business combinations with non-U.S.
entities;
5
- an expansion of our investor base as our company's shares may become more
attractive to non-U.S. investors;
- increased visibility among the investment banking community arising from
its perception of our company's enhanced corporate structure; and
- improved access to sophisticated capital markets.
OTHER BENEFITS
Our current corporate structure is such that worldwide income is subject,
either immediately or eventually, to U.S. taxation. After the reorganization, we
will have the flexibility of conducting new operations directly by World Gaming
Plc, WG International Limited or other non-U.S. entities owned directly or
indirectly by World Gaming Plc or WG International Limited but not by Starnet
Communications International (DE) Inc., and in such case our earnings will be
taxable in the United States only on that portion of our worldwide income that
is attributable to the United States, United States subsidiaries or non-United
States subsidiaries owned by a United States subsidiary to the extent the income
is earned in the United States (directly or indirectly through a partnership of
limited liability company) or is distributed to the United States subsidiary. Of
course, World Gaming Plc's worldwide income and gains will be taxable in the
U.K. subject to any double taxation relief for tax paid outside of the U.K.
We can give no assurances, however, that we will realize any of the
anticipated benefits of the reorganization.
COSTS AND RISKS
The reorganization will impose costs on our company and will expose our
company to some risks. Our board of directors believes that the potential
advantages of the reorganization substantially outweigh these costs and risks.
There are differences between Delaware and English corporate law, as they
apply to the rights attaching to shares of common stock and ordinary shares,
respectively. We discuss the material differences under "Comparison of Rights of
Shareholders." We describe the principal tax and enforcement risks related to
the reorganization under "Risk Factors."
THE REORGANIZATION AGREEMENT (SEE PAGE 26)
The reorganization will be accomplished through the merger of WG
Reorganization Sub, Inc. with and into Starnet Communications International
(DE) Inc., with Starnet Communications International (DE) Inc. surviving. At
that time each outstanding share of Starnet Communications International
(DE) Inc. common stock will be exchanged and at the same time you shall have the
right by virtue of the reorganization to receive ordinary shares of World Gaming
Plc.
AMENDMENT/TERMINATION; EFFECTIVE TIME
(SEE PAGE 27)
The merger may be terminated, and the reorganization abandoned, at any time,
by action of the board of directors of Starnet Communications International
(DE) Inc., whether before or after the special meeting. While we currently
expect the reorganization to take place soon after the special meeting, the
board of directors of Starnet Communications International (DE) Inc. may defer
the reorganization for a significant time or may abandon the reorganization
after the special meeting. Our board of directors may exercise this right for a
variety of reasons including if they determined that the reorganization would,
in their view, be too costly or would have material adverse consequences to our
company. In addition, the board of directors of Starnet Communications
International (DE) Inc. does
6
not intend to consummate the reorganization if the ordinary shares of World
Gaming Plc are not admitted or authorized to trade on a stock exchange or
trading facility in the U.K., U.S., or elsewhere, either directly as ordinary
shares or as American depositary receipts.
AMENDMENTS TO STOCK BASED PLANS
(SEE PAGE 21)
In connection with the reorganization, the boards of directors of Starnet
Communications International (DE) Inc. and World Gaming Plc will have the
ability to amend Starnet Communications International (DE) Inc.'s existing stock
based compensation plans, or create new ones, that will provide for the issuance
of World Gaming Plc ordinary shares. In determining whether to amend existing
stock based plans or create new ones, the boards of directors will consider,
among other things, tax consequences and the terms and conditions of the plans
then in effect. Your approval of the reorganization will also constitute
approval of the foregoing.
ACCELERATION OF SOME MANAGEMENT AND DIRECTOR COMPENSATION BENEFITS
(SEE PAGE 22)
The reorganization will have the effect of accelerating or creating payments
due to certain executive officers and one director of Starnet Communications
International (DE) Inc. However, all of these officers and the affected director
have or will execute prior to completion of the reorganization waivers of these
payments.
RECOMMENDATION OF THE BOARD OF DIRECTORS
(SEE PAGE 19)
THE BOARD OF DIRECTORS OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC. HAS
APPROVED THE PROPOSED REORGANIZATION AND RECOMMENDS THAT YOU VOTE FOR THE
PROPOSAL TO APPROVE THE REORGANIZATION.
VOTE REQUIRED FOR ADOPTION
(SEE PAGE 23)
Approval of the reorganization requires the affirmative vote of the holders
of a majority of the outstanding shares of Starnet Communications International
(DE) Inc. common stock. Because of the vote required, abstentions and broker
non-votes will be treated as votes against the proposal to approve the
reorganization.
As of the record date described below, there were 32,193,181 shares of
Starnet Communications International (DE) Inc. common stock outstanding and
entitled to vote. As of the record date, the directors and executive officers of
Starnet Communications International (DE) Inc. and affiliates of those persons
directly owned, in the aggregate, approximately 1,451,517 shares of Starnet
Communications International (DE) Inc. common stock (approximately 4.51% of the
outstanding Starnet Communications International (DE) Inc. common stock). They
(or their proxies) have indicated their intention to vote these shares in favor
of the proposal to approve the reorganization.
PROXIES
If you held Starnet Communications International (DE) Inc. common stock on
November 1, 2000, the record date, you will receive a proxy card. You may grant
a proxy to vote by marking the proxy card appropriately, executing it in the
space provided, and returning it to Starnet Communications International
(DE) Inc. in the enclosed postage paid, pre-addressed envelope.
7
If you hold your Starnet Communications International (DE) Inc. common stock
in the name of a bank, broker or other nominee, you should follow the
instructions provided by your bank, broker or nominee on voting your shares. To
be effective, a proxy card must be received at or prior to the special meeting.
Shares of Starnet Communications International (DE) Inc. common stock
represented by a properly executed proxy card will, unless the proxy or voting
instructions are revoked, be voted in accordance with the specification
indicated on such proxy card. Shares of Starnet Communications International
(DE) Inc. common stock represented by a properly executed proxy card on which no
specification is made will be voted "for" the proposal to approve the
reorganization.
If any other matters are properly presented at the special meeting for
consideration, including consideration of a motion to adjourn the special
meeting to another time and/or place, including adjournments for the purpose of
soliciting additional proxies, the persons named in the proxy card will have the
discretion to vote on those matters in accordance with their best judgment.
REVOCATION
You may revoke a proxy card at any time prior to its exercise by:
- giving written notice of the revocation to the Secretary of Starnet
Communications International (DE) Inc.;
- appearing and voting in person at the special meeting; or
- properly completing and executing a later-dated proxy and delivering it to
the Secretary of Starnet Communications International (DE) Inc. at or
before the special meeting.
Presence without voting at the special meeting will not automatically revoke
a proxy, and any revocation during the meeting will not affect votes previously
taken.
QUORUM (SEE PAGE 23)
The presence, in person or by proxy, of stockholders holding one-third of
the outstanding shares of Starnet Communications International (DE) Inc. common
stock entitled to vote at the special meeting will constitute a quorum.
RECORD DATE (SEE PAGE 23)
Only Starnet Communications International (DE) Inc. stockholders of record
at the close of business on November 1, 2000, as shown on Starnet Communications
International (DE) Inc.'s records, will be entitled to vote, or to grant proxies
to vote, at the special meeting.
TRADING (SEE PAGE 28)
Starnet Communications International (DE) Inc. common stock is currently
traded on the OTC Bulletin Board under the symbol "SNMM.OB," but will cease to
so trade upon completion of the merger. The board of directors of Starnet
Communications International (DE) Inc. does not intend to consummate the
reorganization if the ordinary shares of World Gaming Plc are not admitted or
authorized to trade on a stock exchange or trading facility in the U.K., U.S. or
elsewhere, either directly as ordinary shares or as American depositary
receipts.
As is the case with Starnet Communications International (DE) Inc., as a
result of registering its ordinary shares for issuance in the reorganization,
World Gaming Plc will be subject to the informational requirements of the
securities laws of the United States. These information requirements, however,
are different for a foreign private issuer, which World Gaming Plc expects to
be, versus U.S.
8
issuers. The differences are described under "Comparison of Rights of
Shareholders--Content and Timing of Reports and Notices of the Companies;
Definition of Foreign Private Issuer."
MARKET PRICE (SEE PAGE 28)
The closing price per share of Starnet Communications International
(DE) Inc. common stock on the OTC Bulletin Board was $1.4375 on November 6,
2000. The high and low sales prices of Starnet Communications International
(DE) Inc. common stock on the OTC Bulletin Board were $1.4062 and $1.129 on
October 18, 2000, the last trading day before the public announcement of the
reorganization.
COMPARISON OF RIGHTS OF SHAREHOLDERS
(SEE PAGE 31)
There are differences between the rights of shareholders under Delaware law
and English law. In addition, there are differences between Starnet
Communications International (DE) Inc.'s certificate of incorporation and bylaws
and World Gaming Plc's memorandum of association and articles of association.
Material differences between the rights of shareholders are discussed in the
section entitled "Comparison of Rights of Shareholders."
TAX CONSIDERATIONS (SEE PAGE 42)
TAXATION OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC. STOCKHOLDERS
At the time of the reorganization, if you are a United States person, for
U.S. federal income tax purposes, you will be treated as if you sold all of your
shares in Starnet Communications International (DE) Inc. in a fully taxable
transaction in which you will recognize gains and losses, if any, in an amount
equal to the difference between your tax basis in your shares in Starnet
Communications International (DE) Inc. and the value of the shares in World
Gaming Plc you receive.
WE URGE YOU TO CONSULT YOUR OWN TAX ADVISORS REGARDING YOUR PARTICULAR TAX
CONSEQUENCES.
TAXATION OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
Starnet Communications International (DE) Inc. and it will not recognize any
gain or loss by virtue of the merger.
After the reorganization, World Gaming Plc will be subject to U.S. federal
income tax only to the extent that it derives U.S. source income that is subject
to U.S. withholding tax or income that is effectively connected with the conduct
of a trade or business within the United States and is not exempt from U.S. tax
under an applicable income tax treaty with the United States. Because Starnet
Communications International (DE) Inc. will be a subsidiary of World Gaming Plc
and will remain a Delaware corporation, the U. S. tax obligations will remain
the same for Starnet Communications International (DE) Inc. and its subsidiaries
after the reorganization as before.
RIGHTS OF DISSENTING SHAREHOLDERS
(SEE PAGE 19)
You will have dissenters' appraisal rights in connection with the
reorganization. In order to qualify for these rights, you must take specific
actions. See also the complete text of Section 262--Appraisal Rights under the
Delaware General Corporation Law attached to this proxy statement/prospectus as
appendix II.
ACCOUNTING TREATMENT (SEE PAGE 21)
The reorganization involves a pooling of interests among companies within
common control and, therefore, there will be no change in accounting as a result
of the reorganization.
9
COMPARATIVE PER SHARE DATA
The following table sets forth the historical and pro forma consolidated per
share data of Starnet Communications International (DE) Inc. giving effect to
the reorganization merger for the years ended April 30, 2000, April 30, 1999 and
April 30, 1998, and the historical and equivalent pro forma per share data of
World Gaming Plc after giving effect to the merger for the years ended
April 30, 2000, April 30, 1999 and April 30, 1998. The data should be read in
conjunction with the consolidated financial statements of each of Starnet
Communications International (DE) Inc. and the respective notes thereto
incorporated by reference in this proxy statement/prospectus, as well as the
information set forth under "Starnet Communications International (DE) Inc.
Consolidated Pro Forma Financial Statements." The unaudited pro forma financial
data is not necessarily indicative of the operating results that would have been
achieved had the transactions been in effect at the beginning of the periods
presented and should not be considered indicative of future results. The per
share data in the table immediately below is in U.S. dollars.
STARNET
COMMUNICATIONS WORLD GAMING
INT'L (DE) INC. PLC PRO FORMA
--------------- ------------ -----------
Year Ended April 30, 2000
Income (loss) from cont. operations per:
common stock/per share
basic........................................... $ (0.16) -- $ (0.16)
Cash dividends per share.......................... -- -- --
book value........................................ 0.65 -- 0.65
Weighted Shares outstanding......................... 29,625,460 -- 29,625,460
Year Ended April 30, 1999
Income (loss) from cont. operations per:
common stock/per share
basic........................................... $ 0.04 -- $ 0.04
diluted......................................... 0.08 -- 0.08
Cash dividends per share.......................... -- -- --
book value........................................ 0.41 -- 0.41
Weighted Shares outstanding......................... 22,951,546 -- 22,951,546
Year Ended April 30, 1998
Income (loss) from cont. operations per:
common stock/per share
basic........................................... $ (0.04) -- $ (0.04)
Cash dividends per share.......................... -- -- --
book value........................................ 0.06 -- 0.06
Weighted Shares outstanding......................... 21,002,885 -- 21,002,885
10
SELECTED FINANCIAL DATA
Selected income statement data for the quarter ended July 31, 2000 and the
years ended April 30 (in thousands of US dollars, except per share figures):
JULY 31 APRIL 30 APRIL 30 APRIL 30 APRIL 30 APRIL 30
2000 2000 1999 1998 1997 1996
-------- --------- --------- --------- --------- ---------
Net sales from continuing operations......... $ 4,029 $17,881 $6,255 $ 257 $ -- $ --
Income (loss) from continuing operations..... (1,822) (4,462) 1,031 (818) -- --
Income (loss) from continuing operations per
common share............................... $ (0.06) $ (0.16) $ 0.04 $(0.04) -- --
Net sales from discontinued operations....... -- 2,705 3,518 3,113 1,997 379
Income (loss) from discontinued operations... -- (355) 1,011 (220) (94) (26)
Income (loss) from discontinued operations
per common share........................... -- $ (0.01) $ 0.04 $(0.01) $(0.00) $(0.00)
Cash dividends declared per common share..... -- -- -- -- -- --
Prior to 1998, the Company's activities were limited to activities which
have since been classified as discontinued operations. The discontinued
operations were disposed of effective March 31, 2000.
Selected balance sheet data as at July 31, 2000 and April 30 for the years
indicated (in thousands of US dollars):
JULY 31 APRIL 30 APRIL 30 APRIL 30 APRIL 30 APRIL 30
2000 2000 1999 1998 1997 1996
-------- -------- -------- -------- -------- --------
Total assets.................................... $26,037 $27,983 $13,439 $3,275 $1,197 $458
Long-term obligations........................... 727 503 461 258 237 63
11
RISK FACTORS
You should consider the following risk factors carefully as well as the
other information in this document.
We also caution you that this document contains statements that contain
"forward looking" information that are not related to historical facts, as that
term is defined in the Private Securities Litigation Reform Act of 1995. These
statements are based on our current beliefs as to the outcome and timing of
future events, and actual results may differ materially from those projected or
implied in the forward looking statements. Further, some forward looking
statements are based upon assumptions of future events which may not prove to be
accurate. The forward looking statements involve risks and uncertainties
including, but not limited to, the risks and uncertainties referred to under
"Risk Factors," "Disclosure Regarding Forward Looking Statements" and elsewhere
within the document and in other of our filings with the Securities and Exchange
Commission.
WE MAY CHOOSE TO DEFER OR ABANDON THE REORGANIZATION.
The merger may be terminated, and the reorganization abandoned, at any time,
by action of the board of directors of Starnet Communications International
(DE) Inc., whether before or after the special meeting. While we currently
expect the reorganization to take place soon after the special meeting, the
board of directors of Starnet Communications International (DE) Inc. may defer
the reorganization for a significant time or may abandon the reorganization
after the special meeting. Our board of directors may exercise this right for a
variety of reasons including if they determined that the reorganization would,
in their view, be too costly or would have material adverse consequences to our
company. In addition, the board of directors of Starnet Communications
International (DE) Inc. does not intend to consummate the reorganization if the
ordinary shares of World Gaming Plc are not admitted or authorized to trade on a
stock exchange or trading facility in the U.K., U.S., or elsewhere either
directly as ordinary shares or as American depositary receipts.
SOME OF YOUR RIGHTS AS A SHAREHOLDER WILL CHANGE AS A RESULT OF THE
REORGANIZATION.
Because of differences in Delaware law and English law and differences in
the governing documents of Starnet Communications International (DE) Inc. and
World Gaming Plc, your rights as a shareholder will change if we complete the
reorganization. Material differences in your rights as a shareholder are
discussed in the section "Comparison of Rights of Shareholders" beginning on
page 31.
THE REORGANIZATION COULD CAUSE YOU TO RECOGNIZE A GAIN ON YOUR SHARES OF THE
COMPANY.
At the time of the reorganization, if you are a United States person, for
U.S. federal income tax purposes, you will be treated as if you sold all of your
shares in Starnet Communications International (DE) Inc. in a fully taxable
transaction in which you will recognize gains and losses, if any, in an amount
equal to the difference between your tax basis in your shares in Starnet
Communications International (DE) Inc. and the value of the shares in World
Gaming Plc you receive. Your tax liability could be significant if the fair
market value of your World Gaming Plc shares at the time of the reorganization
substantially exceeds the amount you paid for your Starnet Communications
International (DE) Inc. shares. YOU ARE URGED TO CONSULT YOUR OWN TAX ADVISORS
REGARDING YOUR PARTICULAR TAX CONSEQUENCES.
YOU MAY FIND IT DIFFICULT TO SELL YOUR INTERESTS IN WORLD GAMING PLC.
We cannot provide any assurance about the liquidity of any markets that may
develop for the ordinary shares, your ability to sell your ordinary shares or
the prices at which you will be able to sell the ordinary shares. The liquidity
of any market for the ordinary shares will depend on the number of holders of
ordinary shares, the interest of any securities dealers in making a market in
the ordinary
12
shares, any transfer restrictions imposed by the laws of the jurisdiction in
which the shares trade and various other factors.
WE MAY BECOME SUBJECT TO CHANGES IN ENGLISH LAW OR POLITICAL CIRCUMSTANCES.
The English government is currently conducting a review of its gaming laws
and regulations in view of rapidly developing Internet-based, or online, gaming
businesses. The English government has observed that almost all relevant British
gaming legislation pre-dates the Internet. One area of particular concern to the
English government is the loss of tax revenues from offshore Internet gaming
concerns. The foregoing review is not scheduled to be completed until the summer
of 2001. While we do not anticipate having licensed gaming operations in
England, we are unable to predict with certainty the outcome of the review and
therefore there is a risk that any future legislation enacted may be unfavorable
to our business.
IF WORLD GAMING PLC IS OR BECOMES A PASSIVE FOREIGN INVESTMENT COMPANY,
SHAREHOLDERS THAT ARE UNITED STATES PERSONS WOULD BECOME SUBJECT TO SIGNIFICANT
ADVERSE U.S. FEDERAL INCOME TAX CONSEQUENCES.
The rules governing passive foreign investment companies can have
significant adverse tax consequences for U.S. investors. World Gaming Plc would
be classified as a passive foreign investment company if, for any taxable year,
either:
- 75% or more of our gross income is passive income, which includes interest
(on working capital, including the proceeds of this offering, as well as
most other interest income), dividends and certain types of rents and
royalties; or
- the average percentage, by fair market value, of our assets that produce
or are held for the production of passive income is 50% or more.
Distributions that constitute "excess distributions," as defined in
Section 1291 of the Internal Revenue Code of 1986, as amended (which we refer to
as the Code), from a passive foreign investment company and gains on
dispositions of shares of a passive foreign investment company may be subject to
the highest rates of tax on ordinary income in effect from time to time and to
an interest charge based on the deferral of such tax during the period the
shares are owned. However, these rules generally will not apply if the U.S.
investor elects to treat the passive foreign investment company as a qualified
electing fund under Section 1295 of the Code and thereby pay tax currently on
the investor's share of our undistributed ordinary earnings and capital gains.
For a discussion of these and other tax considerations relating to an investment
in our ordinary shares, see "Material Tax Considerations--United States Federal
Income Tax Consequences."
WE MAY SEEK TO RAISE ADDITIONAL CAPITAL BY SELLING OUR SHARES IN THE FUTURE.
After the reorganization, we intend to examine acquisition opportunities
and/or equity or debt capital raising opportunities. Any such actions could
adversely affect the market price of our ordinary shares or be dilutive to our
shareholders.
ORDINARY SHARES OF WORLD GAMING PLC THAT ARE TRADED ON A U.S. EXCHANGE OR
TRADING FACILITY WILL BE SUBJECT TO A STAMP DUTY TAX.
After the reorganization, our ordinary shares may be admitted or authorized
to trade on a U.S. exchange or trading facility directly without the use of an
American depositary facility. In such event, each transfer of ordinary shares on
the U.S. exchange or trading facility would be subject to a stamp duty tax in
the U.K. The rate of the stamp duty tax payable is approximately 0.5 percent of
the consideration. See "Material Tax Consequences--Stamp Duty and Stamp Duty
Reserve Tax" for more information.
13
UNAUDITED PRO FORMA FINANCIAL INFORMATION
The reorganization involves a pooling of interests among companies within
common control which will require no change in accounting.
The accompanying unaudited pro forma condensed consolidated income statement
of Starnet Communications International (DE) Inc. for the period ended
April 30, 2000 presents our results as if these transactions had occurred as of
May 1, 1999. The accompanying unaudited pro forma condensed consolidated balance
sheet of Starnet Communications International (DE) Inc. as of April 30, 2000
presents our financial position as if these transactions had occurred as of
April 30, 2000. The unaudited pro forma financial information does not purport
to represent what our financial position or results of operations actually would
have been had these events occurred as of the dates indicated, or to project our
financial position or results of operations for any future date or period. The
pro forma adjustments are based on available information and certain assumptions
that we currently believe are reasonable under the circumstances. The unaudited
pro forma financial information should be read in conjunction with the financial
information and data and discussions contained in the documents described under
"Where You Can Find More Information" on page 52.
14
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
CONSOLIDATED PROFORMA BALANCE SHEETS
APRIL 30, 2000
(IN THOUSANDS OF US $)
(UNAUDITED)
STARNET PROFORMA
COMMUNICATIONS ADJUSTMENTS
INTERNATIONAL WORLD GAMING INCREASE PROFORMA
(DE) INC. PLC (DECREASE) CONSOLIDATED
-------------- ------------ ----------- ------------
ASSETS
CURRENT ASSETS
Cash and cash equivalents.................... $ 5,984 $ -- $ -- $ 5,984
Reserves and deposits with credit card
processors................................. 3,857 -- -- 3,857
Accounts receivable.......................... 2,022 -- -- 2,022
Prepaid expenses and deposits................ 616 -- -- 616
Other current assets......................... 1,349 -- -- 1,349
Current portion of long-term receivable...... 514 -- -- 514
------- ---- ---- -------
Total Current Assets....................... 14,342 -- -- 14,342
------- ---- ---- -------
OTHER ASSETS
Restricted cash.............................. 7,234 -- -- 7,234
Capital assets (net)......................... 4,868 -- -- 4,868
Long-term receivable 1,539 -- -- 1,539
------- ---- ---- -------
Total Other Assets......................... 13,641 -- -- 13,641
------- ---- ---- -------
TOTAL ASSETS............................... $27,983 $ -- $ -- $27,983
======= ==== ==== =======
LIABILITIES AND STOCKHOLDERS EQUITY
CURRENT LIABILITIES
Accounts payable and accrued liabilities....... $ 5,223 $ -- $ -- $ 5,223
Funds held on deposit.......................... 2,118 -- -- 2,118
Deferred revenue............................... 287 -- -- 287
Current portion of capital lease obligations... 476 -- -- 476
------- ---- ---- -------
Total Current Liabilities...................... $ 8,104 -- -- $ 8,104
------- ---- ---- -------
LONG-TERM LIABILITIES
Non-current portion of capital lease
obligations.................................. $ 503 -- -- $ 503
------- ---- ---- -------
Total Long-Term Liabilities 503 -- -- 503
------- ---- ---- -------
Total Liabilities.............................. $ 8,607 -- -- $ 8,607
------- ---- ---- -------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Capital stock.................................. $22,143 -- -- $22,143
Subscription receivable........................ (381) -- -- (381)
Retained earnings (deficit).................... (2,371) -- -- (2,371)
Accumulated other comprehensive loss........... (15) -- -- (15)
------- ---- ---- -------
Total Stockholders' Equity..................... $19,376 -- -- $19,376
------- ---- ---- -------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY..... $27,983 $ -- $ -- $27,983
======= ==== ==== =======
See Summary of Assumptions and Disclosures.
15
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
CONSOLIDATED PROFORMA STATEMENTS OF OPERATIONS
FOR THE YEAR ENDED APRIL 30, 2000
(IN THOUSANDS OF US $)
(UNAUDITED)
STARNET PROFORMA
COMMUNICATIONS ADJUSTMENTS
INTERNATIONAL WORLD GAMING INCREASE PROFORMA
(DE) INC. PLC (DECREASE) CONSOLIDATED
-------------- ------------ ----------- ------------
REVENUE
Sales
Licensing............................. $ 4,028 $ -- $ -- $ 4,028
Royalties and fees.................... 13,853 -- -- 13,853
------- ---- ---- -------
Total Sales......................... 17,881 -- -- 17,881
Cost of sales........................... 5,143 -- -- 5,143
------- ---- ---- -------
Gross Profit........................ 12,738 -- -- 12,738
------- ---- ---- -------
OPERATING EXPENSES
Development, selling, general and
administrative........................ 11,704 -- -- 11,704
Provision for bad debts................. 1,734 -- -- 1,734
Legal................................... 2,082 -- -- 2,082
Depreciation............................ 2,011 -- -- 2,011
Interest and bank charges............... 93 -- -- 93
------- ---- ---- -------
Total Operating Expenses............ 17,624 -- -- 17,624
------- ---- ---- -------
INCOME (LOSS) FROM OPERATIONS............. (4,886) -- -- (4,886)
OTHER INCOME (EXPENSES)................... 308 -- -- 308
------- ---- ---- -------
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES....................... (4,578) -- -- (4,578)
------- ---- ---- -------
INCOME TAX EXPENSE (RECOVERY)
Current................................. (266) -- -- (266)
Deferred................................ 150 -- -- 150
------- ---- ---- -------
Total Income Taxes.................. (116) -- -- (116)
------- ---- ---- -------
INCOME (LOSS) FROM CONTINUING
OPERATIONS.............................. (4,462) -- -- (4,462)
INCOME (LOSS) FROM DISCONTINUED OPERATIONS
OF THE ON-LINE INTERACTIVE MEDIA
DIVISION (LESS APPLICABLE INCOME
TAXES).................................. (355) -- -- (355)
GAIN ON SALE OF THE ON-LINE INTERACTIVE
MEDIA DIVISION (INCLUDING APPLICABLE
INCOME TAXES OF $-0- (Note 15))......... 1,562 -- -- $ 1,562
------- ---- ---- -------
NET INCOME (LOSS) FOR THE YEAR............ (3,255) -- -- (3,255)
RETAINED EARNINGS (DEFICIT), BEGINNING OF
YEAR.................................... 884 -- -- $ 884
------- ---- ---- -------
RETAINED EARNINGS (DEFICIT),
END OF YEAR............................. $(2,371) $ -- $ -- $(2,371)
======= ==== ==== =======
See Summary of Assumptions and Disclosures.
16
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
SUMMARY OF ASSUMPTIONS AND DISCLOSURES
NOTE 1 -- ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business Organization
The accompanying proforma financial statements are prepared to present
the acquisition of Starnet Communications International (DE) Inc. by
World Gaming Plc to aid the user in understanding the acquisition. The
proforma balance sheet and the statement of operations is presented as
though the reorganization took place on May 1, 1999.
The financial statements presented are those of Starnet Communications
International (DE) Inc. (the "Company"). The Company develops, operates
and markets proprietary software that is currently being used for on-line
gaming. The Company's revenues are earned from licensing fees, service
fees and royalties from licensees located outside North America.
NOTE 2--DESCRIPTION OF TRANSACTION
Starnet Communications International (DE) Inc., a Delaware corporation,
will become an indirect wholly-owned subsidiary of World Gaming Plc, a
new holding company incorporated in England and Wales. Pursuant to an
agreement and plan of reorganization, WG Reorganization Sub, Inc. will be
merged with and into Starnet Communications International (DE) Inc., with
Starnet Communications International (DE) Inc. surviving. WG
Reorganization Sub, Inc. is a newly-formed, wholly-owned subsidiary of WG
International Limited, which is a wholly-owned subsidiary of World Gaming
Plc.
17
THE REORGANIZATION
GENERAL
The board of directors has approved and recommends that you approve the
proposed reorganization. WG Reorganization Sub, Inc. will merge with and into
Starnet Communications International (DE) Inc., with Starnet Communications
International (DE) Inc. surviving. You will receive ordinary shares of World
Gaming Plc in exchange for your Starnet Communications International (DE) Inc.
common stock.
After the reorganization, Starnet Communications International (DE) Inc.
will be a wholly-owned subsidiary of WG International Limited, which itself will
be a wholly-owned subsidiary of World Gaming Plc. Your proportionate economic
ownership of World Gaming Plc after the reorganization will be the same as it
was in Starnet Communications International (DE) Inc. The material differences
in your rights as a shareholder of World Gaming Plc are described under "Risk
Factors--Some of Your Rights as a Shareholder Will Change as a Result of the
Reorganization," "Description of Authorized Shares of World Gaming Plc" and
"Comparison of Rights of Shareholders." The actual terms of the reorganization
are contained in the reorganization agreement. The reorganization agreement is
included in this proxy statement/prospectus as annex I. We encourage you to
carefully read this proxy statement/prospectus, as well as the reorganization
agreement.
Starnet Communications International (DE) Inc. has two classes of common
stock authorized, voting Class A common stock and non-voting Class B common
stock. As of the date of this proxy statement/prospectus, Starnet Communications
International (DE) Inc. has only Class A common stock outstanding. Accordingly,
references to the common stock of Starnet Communications International
(DE) Inc. below and elsewhere in this proxy statement/prospectus refer only to
such Class A common stock, unless otherwise specified.
BACKGROUND AND REASONS FOR THE REORGANIZATION
Companies involved in the gaming industry have historically been subject to
extensive statutory and regulatory control by the governments of the countries
and states in which they conduct their operations. In many jurisdictions, the
traditional regulatory scheme has had difficulty in deciding how to address the
birth and rapid growth of the online gaming industry. This has led some
jurisdictions to license and regulate it, others have sought to ban it, while
others are still trying to determine the most appropriate course of action.
Starnet Systems International and World Gaming Services, our subsidiaries
which license online gaming software and operate online casinos are domiciled
and located, in the Country of Antigua and Barbuda, which decided to license and
support online gaming. In the United States, where Starnet Communications
International (DE) Inc. is domiciled, the U.S. Congress has debated and
considered for four years whether to restrict or ban certain types of online
gaming. Starnet Communications International (DE) Inc. believes that the
domicile of our publicly traded parent in the United States is not conducive to
the long term growth and future prospects of the company. Notwithstanding the
foregoing, Starnet Communications International (DE) Inc. which will become a
subsidiary of the new England and Wales-based company, will remain a Delaware
company.
Our board of directors believes that the United Kingdom provides a more
stable business and financial environment for companies involved in the online
gaming industry. Further, our board of directors believes that because the
online gaming industry is increasingly global in nature, the reorganization will
allow us to avail ourselves of significant business and financial advantages
that are
18
not available under the current corporate structure. In particular, the board of
directors recommends the establishment of our publicly traded parent in England
for the following reasons:
- more favorable environment for the formation and growth of companies
involved in the online gaming industry;
- an enhanced ability to compete with non-U.S. companies involved in the
online gaming industry;
- an enhanced ability to pursue business combinations with non-U.S.
entities;
- an expansion of the investor base as our shares may become more attractive
to non-U.S. investors;
- an increased visibility among the investment banking community arising
from its perception of our company's enhanced corporate structure; and
- improved access to sophisticated capital markets.
Over the long term, other benefits of the reorganization include the
potential for reducing our exposure to U.S. federal income taxes on income from
new operations conducted outside the United States although that income may be
subject to taxation in other jurisdiction, including the United Kingdom, where
U.K. resident corporations are subject to U.K. corporation tax on the worldwide
income and gains, subject to double taxation relief.
In addition to the potential benefits described above, the reorganization
will impose some costs on us and will expose us and you to some risks. See "Risk
Factors."
We chose the United Kingdom principally for its stable and supportive gaming
environment and because it will provide continued access to sophisticated
capital markets and will serve as a helpful base for pursuing European- and
Asian-based opportunities in the online gaming industry.
There are also differences between Delaware and English corporate law, and
our Delaware and English constitutional documents. See "Comparison of Rights of
Shareholders." There are also selected tax risks related to the reorganization.
See "Risk Factors." The board of directors determined that the potential
advantages of the reorganization substantially outweigh these risks and
differences.
Although the board of directors evaluated variations in the basic structure
of the reorganization, the board of directors believes, based on advice from
management and its outside advisors in the U.S., that the proposed structure of
the reorganization is the best structure to provide the advantages we are
seeking, without substantial operational or financial risks. Consequently, the
board of directors did not consider any alternatives to the reorganization. No
assurances can be given, however, that the anticipated benefits of the
reorganization will be realized.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The board of directors of Starnet Communications International (DE) Inc. has
approved the proposed reorganization and recommends that you vote for the
proposal to approve the reorganization.
RIGHTS OF DISSENTING SHAREHOLDERS
Starnet Communications International (DE) Inc. is a Delaware corporation,
and as a result of the terms of the reorganization agreement and under the
Delaware General Corporation Law, our stockholders will have rights of appraisal
with respect to their Starnet Communications International (DE) Inc. common
stock.
Delaware law entitles the holders of record of shares of Starnet
Communications International (DE) Inc. common stock who follow the procedures
specified in Section 262 of the Delaware General Corporation Law to have their
shares appraised by the Delaware Court of Chancery and to receive the
19
"fair value" of such shares as of the effective time of the merger as determined
by the court instead of the ordinary shares of World Gaming Plc. In order to
exercise such rights, a stockholder must demand and perfect the rights in
accordance with Section 262. The following is a summary of Section 262 and is
qualified in its entirety by reference to Section 262, a copy of which is
attached as appendix II to this proxy statement/prospectus. Stockholders should
carefully review Section 262 as well as information discussed below to determine
their rights to appraisal.
To exercise your right to an appraisal under Section 262, you must do all of
the following:
- file with Starnet Communications International (DE) Inc. at our main
office in St. John's, Antigua, West Indies, a written demand for appraisal
of shares of Starnet Communications International (DE) Inc. common stock
held. The demand must identify the stockholder and expressly request an
appraisal, before the vote is taken on the reorganization agreement at the
special meeting (this written demand for appraisal must be in addition to
and separate from any proxy or vote against the reorganization agreement;
neither voting against, abstaining from voting nor failing to vote on the
reorganization agreement will constitute a demand for appraisal within the
meaning of Section 262);
- not vote in favor of the reorganization agreement (a failure to vote or
abstaining from voting will satisfy this requirement, but a vote in favor
of the reorganization agreement, by proxy or in person, or the return of a
signed proxy that does not specify a vote against approval and adoption of
the reorganization agreement, will constitute a waiver of such
stockholder's right of appraisal and will nullify any previously filed
written demand for appraisal); and
- continuously hold such shares through the effective time of the merger
reorganization.
All written demands for appraisal should be addressed to: Starnet
Communications International (DE) Inc., The CIBC Banking Centre, Old Parham
Road, P.O. Box 3265, St. John's, Antigua, West Indies, Attention: President and
Chief Executive Officer, before the vote is taken on the reorganization at the
special meeting, and should be executed by, or on behalf of, the holder of
record. Such demand must reasonably inform Starnet Communications International
(DE) Inc. of the identity of the stockholder and that the stockholder is thereby
demanding appraisal of his or her shares of Starnet Communications International
(DE) Inc. common stock.
Within 10 days after the effective time of the merger, the surviving
corporation of the merger will give written notice to each stockholder of
Starnet Communications International (DE) Inc. who has satisfied the
requirements of Section 262 and has not voted for the proposal to approve and
adopt the reorganization agreement and the transactions contemplated thereby (a
"Dissenting Stockholder"). Within 120 days after the effective time, the
surviving corporation or any Dissenting Stockholder may file a petition in the
court demanding a determination of the fair value of the shares of Starnet
Communications International (DE) Inc. common stock that are held by all
Dissenting Stockholders. Any Dissenting Stockholder desiring to file this
petition is advised to file the petition on a timely basis unless the Dissenting
Stockholder receives notice that a petition has already been filed by the
surviving corporation or another Dissenting Stockholder.
If a petition for appraisal is timely filed, the court will determine which
stockholders are entitled to appraisal rights and thereafter will determine the
fair value of the shares of Starnet Communications International (DE) Inc.
common stock held by Dissenting Stockholders, exclusive of any element of value
arising from the accomplishment or expectation of the merger, but together with
a fair rate of interest, if any, to be paid on the amount determined to be fair
value. In determining such fair value, the court shall take into account all
relevant factors. The court may determine such fair value to be more than, less
than or equal to the consideration that the Dissenting Stockholder would
otherwise be entitled to receive pursuant to the reorganization agreement. If a
petition for appraisal is not timely filed, then the right to an appraisal shall
cease. The costs of the appraisal proceeding shall be
20
determined by the court and charged against the parties as the court determines
to be equitable under the circumstances. Upon the application of any
stockholder, the court may determine the amount of interest, if any, to be paid
upon the value of the shares of Starnet Communications International (DE) Inc.
common stock of stockholders entitled to such interest. Upon application of a
stockholder, the court may order all or a portion of the expenses incurred by
any stockholder in connection with the appraisal proceeding, including, without
limitation, reasonable attorneys' fees and the fees and expenses of experts, to
be charged pro rata against the value of all shares of Starnet Communications
International (DE) Inc. common stock entitled to appraisal.
From and after the effective time of the merger, no Dissenting Stockholder
shall have any rights of a Starnet Communications International (DE) Inc.
stockholder with respect to such holder's shares for any purpose, except to
receive payment of its fair value and to receive payment of dividends or other
distributions on such holder's shares of Starnet Communications International
(DE) Inc. common stock, if any, payable to Starnet Communications International
(DE) Inc. stockholders of record as of a date prior to the effective time. If a
Dissenting Stockholder delivers to the surviving corporation a written
withdrawal of the demand for an appraisal within 60 days after the effective
time or thereafter with the written approval of the surviving corporation, or,
if no petition for appraisal is filed within 120 days after the effective time,
then the right of that Dissenting Stockholder to an appraisal will cease and the
Dissenting Stockholder will be entitled to receive only ordinary shares of World
Gaming Plc.
AMENDMENTS TO STOCK BASED PLANS
After the reorganization we will amend our stock based compensation plans or
create new stock based compensation plans to provide that World Gaming Plc will
issue options for its ordinary shares. We will revise or amend our other
employee benefit plans, or cancel existing plans and adopt new plans, as
necessary, as the board of directors of Starnet Communications International
(DE) Inc. and World Gaming Plc may determine to be appropriate based on taxation
issues that arise in this regard.
Your approval of the reorganization will also constitute approval of
amendments to our existing stock based compensation plans and stock purchase
plans and other employee benefit plans providing for future use of World Gaming
Plc ordinary shares in lieu of Starnet Communications International (DE) Inc.
common stock after the reorganization, if relevant, or the creation of new stock
based compensation plans, stock purchase plans and other employee benefit plans
in World Gaming Plc as the boards of directors of Starnet Communications
International (DE) Inc. and World Gaming Plc consider appropriate based on tax
issues and the plans and benefits then currently available.
BULLETIN BOARD TRADING
Our common stock is currently traded on the Over-The-Counter Bulletin Board
under the symbol "SNMM.OB." Upon effectiveness of the merger, if you do not
properly seek appraisal rights under Delaware law, your Starnet Communications
International (DE) Inc. common stock will automatically convert into and
represent the right to receive ordinary shares of World Gaming Plc, and trading
of the common stock on the OTC Bulletin Board and otherwise will cease. We
expect to be publicly traded prior to the consummation of the reorganization.
However, the board of directors of Starnet Communications International
(DE) Inc. will not consummate the reorganization if the ordinary shares of World
Gaming Plc are not admitted or authorized to trade on a stock exchange or
trading facility in the U.K., U.S., or elsewhere either directly as ordinary
shares or as American depositary receipts.
ACCOUNTING TREATMENT
The reorganization involves a pooling of interests among companies with
common control and, therefore, there will be no change in accounting as a result
of the reorganization.
21
ACCELERATION OF CERTAIN COMPENSATION BENEFITS
The reorganization will have the effect of accelerating or creating payments
due to certain executive officers and one director of Starnet Communications
International (DE) Inc. However, all of these officers and the affected director
have or will execute prior to completion of the reorganization waivers of these
payments.
REGULATORY APPROVAL REQUIREMENTS IN U.K.
The reorganization does not require any material approval by any U.K.
governmental authority.
22
THE SPECIAL MEETING
GENERAL
Starnet Communications International (DE) Inc. will hold a special meeting
for its stockholders at 10:00 a.m., local time, on December 8, 2000, at the
Royal Antiguan Resort, Deep Bay, St. John's, Antigua, to consider and vote on:
- approval of the reorganization, including the reorganization agreement,
and authorization for the board of directors to take all actions deemed
necessary or advisable to give effect to the reorganization, and
- any other matters that may properly come before the special meeting, or
any adjournment or postponement of the special meeting, including the
adjournment or postponement of the special meeting for the purpose of
soliciting additional votes in favor of the first proposal.
QUORUM
The presence, in person or by proxy, of stockholders holding one-third of
the outstanding shares of Starnet Communications International (DE) Inc. common
stock entitled to vote at the special meeting will constitute a quorum.
RECORD DATE
Only Starnet Communications International (DE) Inc. stockholders of record
at the close of business on November 1, 2000, as shown on Starnet Communications
International (DE) Inc.'s records, will be entitled to vote, or to grant proxies
to vote at the special meeting.
VOTE REQUIRED FOR ADOPTION
Approval of the reorganization requires the affirmative vote of the holders
of a majority of the outstanding shares of Starnet Communications International
(DE) Inc. common stock.
Because of this vote requirement, abstentions will have the same effect as
votes against the proposal to approve the reorganization. Under the rules of the
NYSE, brokers who hold shares in "street name" for customers have the authority
to vote on many routine proposals when they have not received instructions from
beneficial owners. However, brokers are precluded from exercising their voting
discretion with respect to non-routine matters such as the reorganization. Thus,
absent specific instructions from you, your broker is not empowered to vote your
shares with respect to the approval and adoption of the reorganization, a so
called broker non-vote. Since an affirmative vote of a majority of the
outstanding Starnet Communications International (DE) Inc. common shares is
required for approval of the reorganization, a broker non-vote will have the
same effect as a vote against the reorganization. Starnet Communications
International (DE) Inc. and World Gaming Plc each will approve the
reorganization. Similarly, World Gaming Plc will approve the reorganization as
the sole shareholder of WG International Limited, and WG International Limited
will approve the reorganization as the sole shareholder of WG Reorganization
Sub, Inc.
As of the record date described above, there were 32,193,181 shares of
Starnet Communications International (DE) Inc. common stock outstanding and
entitled to vote. As of the record date, the directors and executive officers of
Starnet Communications International (DE) Inc. and affiliates of these persons
directly owned, in the aggregate, approximately 1,451,517 shares of Starnet
Communications International (DE) Inc. common stock (approximately 4.51% of the
outstanding Starnet Communications International (DE) Inc. common stock). They
(or their proxies) have indicated their intention to vote these shares in favor
of the proposal to approve the reorganization.
23
PROXIES
GENERAL. You will receive a proxy card if you were a stockholder of our
company as of the record date. If you properly received a proxy card, you may
grant a proxy to vote for or against, or to abstain from voting, on the proposal
to approve the reorganization by marking your proxy card appropriately,
executing it in the space provided and returning it to the Secretary of Starnet
Communications International (DE) Inc.
If you hold your Starnet Communications International (DE) Inc. common stock
in the name of a bank, broker or other nominee, you should follow the
instructions provided by your bank, broker or nominee on voting your shares.
If you have timely submitted a properly executed proxy card and clearly
indicate your votes, your shares will be voted as indicated. If you have timely
submitted a properly executed proxy card and have not clearly indicated your
votes, your shares will be voted FOR the proposal to approve the reorganization.
Any Starnet Communications International (DE) Inc. stockholder of record who is
present at the special meeting in person will be entitled to vote at the meeting
regardless of whether that stockholder has previously granted a proxy with
respect to the reorganization.
REVOCATION. You may revoke your proxy card at any time prior to its
exercise by:
- giving written notice of the revocation to the Secretary of Starnet
Communications International (DE) Inc.;
- appearing and voting in person at the special meeting; or
- properly completing and executing a later-dated proxy and delivering it to
the Secretary of Starnet Communications International (DE) Inc.
Your presence without voting at the special meeting will not automatically
revoke your proxy and any revocation during the meeting will not affect votes
previously taken. If you hold your Starnet Communications International
(DE) Inc. common stock in the name of a bank, broker or other nominee, you
should follow the instructions provided by your bank, broker or nominee in
revoking your previously granted proxy.
VALIDITY. The inspectors of election will determine all questions as to the
validity, form, eligibility, including time of receipt, and acceptance of proxy
cards. Their determination will be final and binding. The board of directors of
Starnet Communications International (DE) Inc. will have the right to waive any
irregularities or conditions as to the manner of voting. Starnet Communications
International (DE) Inc. may accept proxies by any reasonable form of
communication so long as Starnet Communications International (DE) Inc. is
reasonably assured that the communication is authorized by you.
SOLICITATION OF PROXIES
The board of directors of Starnet Communications International (DE) Inc. is
soliciting the accompanying proxy. The expenses of preparing, printing and
mailing the proxy and the materials used in the solicitation will be borne by
Starnet Communications International (DE) Inc.
Starnet Communications International (DE) Inc. has retained Regan &
Associates, Inc. to aid in the solicitation of proxies, for a fee of
approximately $15,000 and the reimbursement of expenses. Proxies may also be
solicited by personal interview, telephone and telegram by directors, officers
and employees of Starnet Communications International (DE) Inc. who will not
receive additional compensation for their services. Arrangements also may be
made with brokerage houses and other custodians, nominees and fiduciaries to the
beneficial owners of Starnet Communications International (DE) Inc. common stock
held by those persons, and Starnet Communications International (DE) Inc.
24
will reimburse them for reasonable expenses in connection with the forwarding of
the solicitation materials.
ADDITIONAL PROPOSAL
Management of Starnet Communications International (DE) Inc. knows of no
matters other than as described in the accompanying notice of special meeting
which are likely to be brought before the special meeting. However, if any other
matters are properly presented at the special meeting, or at any adjournment or
postponement of the special meeting, for consideration, including consideration
of a motion to adjourn the meeting to another time and/or place, including
adjournments for the purpose of soliciting additional proxies, our board of
directors seek your authorization to direct the manner in which your shares are
voted on such matters in accordance with their best judgment.
THE BOARD OF DIRECTORS OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
RECOMMENDS THAT YOU VOTE "FOR" AUTHORIZATION OF THE BOARD OF DIRECTORS TO DIRECT
THE VOTE OF THE PROXIES UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE
SPECIAL MEETING AND ANY ADJOURNMENT OR POSTPONEMENT OF THE SPECIAL MEETING,
INCLUDING ANY MOTION TO ADJOURN OR POSTPONE THE SPECIAL MEETING FOR THE PURPOSE
OF SOLICITING ADDITIONAL VOTES FOR THE REORGANIZATION PROPOSAL.
25
THE REORGANIZATION AGREEMENT
GENERAL
We propose that the reorganization be effected pursuant to the
reorganization agreement, which is incorporated herein by reference. The steps
to the reorganization are:
- merging WG Reorganization Sub, Inc. with and into Starnet Communications
International (DE) Inc., with Starnet Communications International
(DE) Inc. surviving; and
- in the merger, each share of outstanding Starnet Communications
International (DE) Inc. common stock will automatically convert into and
represent the right, pursuant to the reorganization agreement and Delaware
law, to receive one ordinary share of World Gaming Plc. As a result of the
merger, you will become, unless you properly exercise your dissenter's
appraisal rights, a shareholder of an English company.
The memorandum of association and articles of association of World Gaming
Plc shall be the governing organizational documents of the surviving corporation
of the merger and are set forth in exhibit B and exhibit C to the reorganization
agreement, attached as annex I to this proxy statement/ prospectus.
EXCHANGE OF CERTIFICATES REPRESENTING STARNET COMMON STOCK
World Gaming Plc will appoint an exchange agent who will exchange
certificates representing shares of Starnet Communications International
(DE) Inc. common stock for certificates representing ordinary shares of World
Gaming Plc. Promptly after the merger is completed, Starnet Communications
International (DE) Inc. or the exchange agent will mail to each registered
holder of shares of Starnet Communications International (DE) Inc. common stock,
a letter of transmittal which the holder must properly complete and deliver to
the exchange agent with the holder's common stock certificates. World Gaming Plc
will deposit with the exchange agent World Gaming Plc ordinary share
certificates in an amount sufficient to deliver ordinary shares to holders of
Starnet Communications International (DE) Inc. common stock.
After a registered holder of shares of Starnet Communications International
(DE) Inc. common stock delivers certificates for those shares and a signed
transmittal letter to the exchange agent, the holder will be entitled to receive
in exchange for the holder's Starnet Communications International (DE) Inc.
common stock:
- the number of ordinary shares of World Gaming Plc, into which the holder's
shares were converted in the merger; and
- a check in the amount, after giving effect to any required tax
withholdings, of any cash dividends or other distributions that the holder
has the right to receive, including dividends or other distributions
payable with respect to the holder's ordinary shares of World Gaming Plc
with a record date after the completion of the merger and a payment date
on or before the date the holder properly delivers Starnet Communications
International (DE) Inc. common stock certificates to the exchange agent.
Shares of Starnet Communications International (DE) Inc. common stock that
are surrendered to the exchange agent will be canceled. No holder of Starnet
Communications International (DE) Inc. common stock will receive any dividends
or other distributions with respect to ordinary shares of World Gaming Plc to
which the holder is entitled under the reorganization agreement until that
holder's Starnet Communications International (DE) Inc. common stock certificate
is surrendered to the exchange agent with a properly completed letter of
transmittal.
26
Shares of WG Reorganization Sub, Inc. common stock held by World Gaming Plc
immediately prior to the merger, which constitute all of the outstanding capital
stock of WG Reorganization Sub, Inc., will automatically convert in the merger
into shares of common stock of Starnet Communications International (DE) Inc. As
a result of the merger, Starnet Communications International (DE) Inc. will
become a wholly-owned subsidiary of WG International Limited, and therefore an
indirect wholly-owned subsidiary of World Gaming Plc.
In order for a person who is not a registered holder of the Starnet
Communications International (DE) Inc. common stock to have a certificate
exchanged, the person must:
- ensure that the certificate surrendered is properly endorsed or otherwise
in proper form for cancellation; and
- pay the exchange agent any transfer or other taxes required or establish
to the satisfaction of the exchange agent that such taxes have been paid
or are not payable.
A Starnet Communications International (DE) Inc. stockholder who holds
Starnet Communications International (DE) Inc. common stock in "street name"
through a bank, broker or other financial institution should receive information
about the procedures for exchanging that holder's shares for ordinary shares
from that institution.
CONDITIONS TO CONSUMMATION OF THE REORGANIZATION
The reorganization will not be completed unless, among other requirements,
the following conditions are satisfied or, if allowed by law, waived:
- The stockholders of Starnet Communications International (DE) Inc. approve
the reorganization by the requisite vote.
- We receive all necessary third-party consents to the reorganization, if
any.
EFFECTIVE TIME
We anticipate that the reorganization will become effective soon after the
special meeting. The merger of WG Reorganization Sub, Inc. with and into Starnet
Communications International (DE) Inc., if approved by our shareholders and not
terminated by the board of directors, will become effective upon the later of:
(1) the time of filing a certificate of merger with the Delaware Secretary of
State; or (2) a later effective time specified in the certificate of merger
filed with Delaware.
Immediately following the effective time of the reorganization, World Gaming
Plc will have the same directors and executive officers as Starnet
Communications International (DE) Inc. had immediately prior to that date except
that Dean Grimm will not be a director of World Gaming Plc.
AMENDMENT/TERMINATION
By a written agreement, all of the parties to the reorganization agreement
may amend, modify or supplement the reorganization agreement at any time, except
no amendment, modification or supplement may be made or effected that by law
requires further approval by stockholders without the further approval of those
stockholders.
The board of directors of Starnet Communications International (DE) Inc. may
terminate the reorganization agreement and abandon the reorganization, at any
time, whether before or after the special meeting. While we currently expect the
reorganization to take place soon after the special meeting, the board of
directors of Starnet Communications International (DE) Inc. may defer the
reorganization for a significant time or may abandon the reorganization after
the special meeting. Our board of directors may exercise this right for a
variety of reasons including if they determined that the
27
reorganization would, in their view, be too costly or would have material
adverse consequences to our company. In addition, the board of directors of
Starnet Communications International (DE) Inc. does not intend to consummate the
reorganization if the ordinary shares of World Gaming Plc are not admitted or
authorized to trade on a stock exchange or trading facility in the U.K., U.S.,
or elsewhere either directly as ordinary shares or as American depositary
receipts.
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
AND OTHER COMPANIES
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
Starnet Communications International (DE) Inc. is incorporated in the State
of Delaware and is a St. John's, Antigua-based holding company with its
subsidiaries involved in the online gaming industry. Our subsidiaries and
affiliates focus on the development, production and licensing of Internet
technologies for gaming applications. Our company was incorporated in Nevada as
Creative Sports Marketing, Inc., and subsequently the name of our company was
changed to Gelato Brats Inc. in January 1997 and then to Starnet Communications
International (DE) Inc. in February 1997. We redomiciled our company to Delaware
in March 1997.
Since our most recent filing with the SEC, we have announced or consummated
the following significant transactions or events:
- On September 13, 2000, we announced that Fred Hazell, our current
chairman, had been appointed as acting chief executive officer and
president following the resignation of Meldon Ellis from the same
positions. Mr. Ellis resigned to pursue other interests. Mr. Hazell has
assumed control of our day-to-day operations pending the selection of a
new chief executive officer.
- On September 1, 2000, we announced the launch of the first phase of our
Beyond2000 software on our gaming site. Beyond2000 is a comprehensive
suite of I-learning products available on the Internet. It includes
instant play and downloadable casino and lottery games, multi-player
bingo, pari-mutuel wagering and sports betting. The first phase of the
launch included Java casino, lotteries and multi-player bingo games.
Subsequent phases will include pari-mutuel wagering and new downloadable
casino, lottery and bingo products.
PRICE RANGE OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC. COMMON STOCK
Starnet Communications International (DE) Inc. common stock trades on the
OTC Bulletin Board under the symbol "SNMM.OB." The following table sets forth
the quarterly range of high and low reported sale prices of the Starnet
Communications International (DE) Inc. common stock on the OTC Bulletin Board
for the periods indicated.
HIGH LOW
Calendar Year 1998 -------- --------
Fourth Quarter.......................................... 1.4375 0.4062
Calendar Year 1999
First Quarter........................................... 14.6562 1.8125
Second Quarter.......................................... 19.2812 8.875
Third Quarter........................................... 24.7188 3.75
Fourth Quarter.......................................... 4.9375 2.125
Calendar Year 2000
First Quarter........................................... 9.50 2.5938
Second Quarter.......................................... 4.125 2.375
Third Quarter........................................... 3.9375 1.75
28
On November 6, 2000 the last reported sale price of the Starnet
Communications International (DE) Inc. common stock as reported on the OTC
Bulletin Board was $1.4375 per share. As of November 1, 2000, there were
approximately 159 record holders of Starnet Communications International
(DE) Inc. common stock.
WORLD GAMING PLC
World Gaming Plc is an English company incorporated and existing under the
laws of England and Wales. It has transacted no business to date except in
connection with the reorganization and related transactions. World Gaming Plc
has issued no capital stock to date, except to the nominee shareholders holding
the minimum number of ordinary shares required upon incorporation of an English
company. World Gaming Plc's registered office is located at Devonshire House, 60
Goswell Road, London EC1M 7AD.
WG INTERNATIONAL LIMITED
WG International Limited is an English private limited company and a
wholly-owned subsidiary of World Gaming Plc. It has conducted no business to
date except in connection with the reorganization and related transaction. WG
International Limited was formed for the purpose of effecting the reorganization
and to provide flexibility to World Gaming Plc in structuring its investments
and holdings in the future. In addition, it will provide World Gaming Plc with a
European based company which could, if necessary guarantee the obligations of
its various subsidiaries. WG International Limited's registered office is
located at Devonshire House, 60 Goswell Road, London EC1M 7AD.
WG REORGANIZATION SUB, INC.
WG Reorganization Sub, Inc. is a Delaware corporation and wholly-owned
subsidiary of WG International Limited. WG Reorganization Sub, Inc. was
organized for the sole purpose of effecting the reorganization and has
transacted no business to date except in connection with the reorganization and
related transactions. In the reorganization, WG Reorganization Sub, Inc. will be
merged with and into Starnet Communications International (DE) Inc. with Starnet
Communications International (DE) Inc. surviving. WG Reorganization Sub, Inc.'s
registered office is located at Devonshire House, 60 Goswell Road, London EC1M
7AD.
DESCRIPTION OF AUTHORIZED SHARES OF
WORLD GAMING PLC
The authorized share capital of World Gaming Plc is L1,000,000 divided into
shares of L0.01 each.
All of the issued ordinary shares of World Gaming Plc have been validly
issued, and are fully paid up. There are no rights of pre-emption attaching to
the ordinary shares. Furthermore, they are not issued as redeemable shares.
However, it should be noted that World Gaming Plc may choose to utilize the
power conferred upon it by Part V Chapter VII of the Companies Act 1985 to issue
redeemable shares subject to obtaining an appropriate authority from
shareholders. Neither the Memorandum of Association or Articles of Association
of World Gaming Plc nor any statutory provision in England and Wales restrict in
any way the ownership of or voting rights attaching to the ordinary shares held
by persons resident outside the United Kingdom. Under the terms of the Articles
of Association of World Gaming Plc, the company is obliged to give notice of
shareholder meetings to all persons, including those with an address for service
outside the United Kingdom.
DIVIDEND AND LIQUIDATION RIGHTS. Holders of ordinary shares are entitled to
receive equally, share for share, any dividends that may be declared by the
board of directors of World Gaming Plc out of funds legally available therefor.
In the event of World Gaming Plc's liquidation, after satisfaction of
liabilities to creditors, holders of ordinary shares are entitled to share pro
rata in the net
29
assets of World Gaming Plc. Such rights may be affected by the grant of
preferential dividend or distribution rights to the holders of a class or series
of preferred shares that may be authorized in the future. However, the creation
of a new class of shares with rights in preference to those of the ordinary
shares would require the consent of shareholders with at least three-fourths
nominal value of the ordinary share capital.
VOTING, SHAREHOLDER MEETINGS AND RESOLUTIONS. Holders of ordinary shares
have one vote for each ordinary share held on all matters submitted to a vote of
shareholders. These voting rights may be affected by the grant of any special
voting rights to the holders of a class or series of preferred shares that may
be authorized in the future. However, the creation of a new class of shares with
rights in preference to those of the ordinary shares would require the consent
of shareholders with at least three-fourths in nominal value of the ordinary
share capital. An annual general meeting of shareholders of World Gaming Plc
will be held once every calendar year at the time (within a period of not more
than 15 months after the last preceding annual general meeting of shareholders)
and at the place as may be determined by the board of directors of World Gaming
Plc. The quorum required for a meeting of shareholders is two shareholders
present in person or by proxy.
An ordinary resolution (such as a resolution for the appointment or removal
of a director) requires approval by the holders of a majority of the ordinary
shares of World Gaming Plc represented at a meeting, in person or by proxy, and
voting thereon. A special or extraordinary resolution (such as, for example, a
resolution amending World Gaming Plc's Memorandum of Association or Articles of
Association or approving a winding-up of the company) requires approval of the
holders of 75% of the ordinary shares of World Gaming Plc represented at the
meeting, in person or by proxy, and voting thereon. A special or extraordinary
resolution can only be considered if World Gaming Plc's shareholders receive at
least 21 days' prior notice of the meeting at which such resolution will be
considered.
TRANSFER OF SHARES AND NOTICES. Fully paid ordinary shares of World Gaming
Plc are issued in registered form and may be freely transferred pursuant to the
Articles of Association. Subject to the provisions of English law, World Gaming
Plc's articles of association provide that World Gaming Plc may issue shares
which may be held evidenced and transferred through a relevant system in an
uncertificated form. Each shareholder entered on the Register of Members of the
Company is entitled to receive at least fourteen days' prior notice of an
ordinary shareholders' meeting of World Gaming Plc and at least twenty-one days'
prior notice of any shareholders' meeting of World Gaming Plc at which a special
resolution is to be adopted. Subject to some limited exceptions, for the
purposes of determining the shareholders entitled to receive notice and to vote
at the meeting, the board of directors of World Gaming Plc may fix a record date
not more than 21 days' prior to the date of the meeting.
MODIFICATION OF CLASS RIGHTS. The rights attached to any class (unless
otherwise provided by the terms of issue of that class), such as voting,
dividends and the like, may be varied with the consent in writing of the holders
of 75% of the issued shares of such class, or with the adoption of an
extraordinary resolution passed at a separate general meeting of the holders of
the shares of that class.
ELECTION OF DIRECTORS. Subject to subsequent variations in World Gaming
Plc's Articles of Association as may be made by its shareholders, the holders of
World Gaming Plc ordinary shares that represent more than 50% of the voting
power of World Gaming Plc have the power to elect and remove all of World Gaming
Plc's directors.
A summary of the rights attaching to the ordinary shares is included as part
of the discussion under the caption "Comparison of Rights of Shareholders"
beginning on page 31.
30
COMPARISON OF RIGHTS OF SHAREHOLDERS
The following discussion is a summary of material changes in your rights as
a shareholder following the reorganization. We believe this summary is accurate.
However, it is subject to the complete text of the relevant provisions of the
Companies Act of 1985 and 1989 (as amended) and related legislation, the
Delaware General Corporation Law, Starnet Communications International
(DE) Inc.'s certificate of incorporation and bylaws, World Gaming Plc's
memorandum of association and articles of association, and the Securities
Exchange Act of 1934, as amended, the SEC's rules and regulations, and the
Insolvency Act of 1986 and the Financial Services Act of 1986 in the United
Kingdom.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Your rights as a stockholder of Starnet Communications International
(DE) Inc. are governed by Delaware law and Starnet Communications International
(DE) Inc.'s certificate of incorporation and bylaws. After the reorganization,
you will become a shareholder of World Gaming Plc and your rights will be
governed by the laws of England and Wales and World Gaming Plc's memorandum of
association and articles of association.
The certificate of incorporation of Starnet Communications International
(DE) Inc. authorizes 100,000,000 shares of voting Class A common stock,
50,000,000 shares of non-voting Class B common stock and 50,000,000 shares of
preferred stock. As of the date of this proxy statement/prospectus, Starnet
Communications International (DE) Inc. has only Class A common stock
outstanding. Accordingly, references to the common stock of Starnet
Communications International (DE) Inc. below and elsewhere in this proxy
statement/prospectus refer only to such Class A common stock, unless otherwise
specified.
QUORUM; MEETING OF SHAREHOLDERS
Starnet Communications International (DE) Inc. Under Delaware law,
shareholder meetings generally must be held every thirteen months and a special
meeting of stockholders may be called only by the board of directors or by
persons authorized in the charter or the bylaws. The bylaws of Starnet
Communications International (DE) Inc. provide for the calling of a special
meeting of stockholders by the chairman of the board, or by the secretary at the
written request of a majority of the capital stock entitled to vote.
The bylaws of Starnet Communications International (DE) Inc. provide that
one-third of the shares entitled to vote, present in person or represented by
proxy, shall constitute a quorum at a meeting of stockholders.
World Gaming Plc. World Gaming Plc is a public company registered under the
laws of England and Wales. Under English law, an annual general meeting of a
public company must be held each year and at least once every fifteen months,
and an extraordinary general meeting of shareholders may be called by the board
of directors or (notwithstanding any provision to the contrary in a company's
articles of association) by a request to the board of directors from
shareholders holding not less than one-tenth of the paid-up capital of the
company carrying voting rights at general meetings. In the event that the board
of directors does not call an extraordinary general meeting pursuant to a
request from the requisite number of shareholders, the shareholders are entitled
to call an extraordinary general meeting.
An extraordinary general meeting at which an ordinary resolution is proposed
requires 14 clear days' notice (other than an ordinary resolution to remove a
director which requires 21 clear days'
31
notice). Such ordinary resolution requires a majority of the votes cast by those
present (in person or by proxy). An extraordinary general meeting at which a
special resolution is proposed requires 21 clear days' notice and such
resolution requires a three-quarters majority of the votes cast by those present
(in person or by proxy). An annual general meeting requires 21 clear days'
notice regardless of the types of resolution to be proposed. The term "clear
days' notice" means calendar days and excludes the date of mailing, the deemed
date of receipt of such notice (which is provided for in the articles of
association when first-class mail is employed), and the date of the meeting
itself.
"Extraordinary resolutions" are relatively unusual and are confined to
certain matters out of the ordinary course of business such as a proposal to
wind up the affairs of a company. Proposals that are the normal subject of
"special resolutions" generally involve proposals to change the name of the
company, to alter its capital structure, to change or amend the rights of
shareholders, to permit the company to issue new shares for cash without
applying the shareholders' pre-emptive rights and to amend the company's objects
(purpose) clause in its memorandum of association and articles of association
and to carry out certain other matters where either the company's articles of
association or the Companies Act prescribe that a "special resolution" is
required. All other proposals relating to the ordinary course of the company's
business such as the election of directors would be the subject of an "ordinary
resolution."
Under English law, the quorum for a shareholders' meeting is two. A company
can change that quorum in its articles of association. The articles of
association of World Gaming Plc specify that two shareholders present in person
or by proxy and entitled to vote constitute a quorum.
Any registered shareholder may vote in person or, assuming the proxy is
received at least 48 hours prior to the time set for the meeting, by proxy.
There is no record date for shareholders meetings under English law.
VOTING OF SHAREHOLDERS
Starnet Communications International (DE) Inc. Under Delaware law, unless
otherwise provided in the certificate of incorporation, each stockholder is
entitled to one vote for each share of capital stock held by that stockholder.
Starnet Communications International (DE) Inc. provides for one vote for each
share of capital stock held by that stockholder. Starnet Communications
International (DE) Inc. does not provide for cumulative voting.
World Gaming Plc. Under English law, the voting rights of shareholders are
governed by a company's articles of association. Unless a shareholder loses the
right to vote for failing to disclose his or her beneficial ownership, each
registered shareholder present in person (or, if a corporation, present by a
duly authorized representative) or by proxy, is entitled to cast one vote for
each share held at any annual general meeting or extraordinary general meeting.
Cumulative voting, which means that a shareholder is allowed to cumulate all of
the shareholder's votes for director for one director, is essentially unknown
under English law.
PREEMPTIVE RIGHTS
Starnet Communications International (DE) Inc. Under Delaware law, a
stockholder is not entitled to preemptive rights to subscribe for additional
issuances of stock or any security convertible into stock unless they are
specifically granted in the certificate of incorporation. Starnet Communications
International (DE) Inc.'s certificate of incorporation does not provide for
preemptive rights.
World Gaming Plc. Under English law, the issue for cash of equity securities
(securities that with respect to dividends or capital carry a right to
participate beyond a specified amount) or rights to subscribe for or convert
into equity securities must be offered first to the existing equity shareholders
in proportion to their respective ownership in the company, unless a special
resolution has been passed in a general meeting of shareholders to the contrary.
World Gaming Plc will have initial authority to issue 5% of its issued share
capital through an issue for cash of equity securities other than pro rata to
existing shareholders entitlements.
32
PREFERRED STOCK
Starnet Communications International (DE) Inc. Under Delaware law and the
certificate of incorporation of Starnet Communications International (DE) Inc.,
the board of directors has the right to issue up to 50,000,000 shares of
preferred stock with such powers, rights and designations as it may so
determine.
World Gaming Plc. Initially, World Gaming Plc will not have any authorized
preference shares. Under English law, the creation and issue of any additional
class of shares (including preference shares) would require approval by
shareholders in a general meeting and subject to this the board of directors has
the right to issue preference shares with such powers, rights and restrictions
as it may determine.
DISTRIBUTIONS AND DIVIDENDS; STOCK REPURCHASES
Starnet Communications International (DE) Inc. Under Delaware law, a
corporation may pay dividends out of surplus and, if there is no surplus, out of
net profits for the current and/or the preceding fiscal year, unless the net
assets of the corporation are less than the capital represented by issued and
outstanding stock having a preference on asset distributions. Surplus is defined
under Delaware law as the excess of the net assets over capital, as such capital
may be adjusted by the board of directors.
A Delaware corporation may purchase shares of any class except when its
capital is impaired or would be impaired by such purchase. A corporation may,
however, purchase out of capital shares that are entitled upon any distribution
of its assets to a preference over another class or series of its stock if these
shares are to be retired and the capital reduced.
World Gaming Plc. Under English law, a company may only pay dividends out of
profits legally available for distribution, which are basically defined as being
the company's accumulated realized profits less its accumulated realized losses.
A company may only make a distribution if its accumulated profit and loss
account shows a surplus. A company which makes a profit in a given year will
only be in a position to pay a dividend to the extent that its accumulated
profits exceed its accumulated losses. Profits and losses from previous years
are therefore taken into account.
A public company may, if authorized by its articles of association,
repurchase or redeem its shares out of distributable profits or from the
proceeds of a new issuance of shares. Shares are only capable of redemption
where those shares are issued as redeemable shares. An English public company is
not entitled to fund a redemption or repurchase of its shares from its capital
reserves. In order for a company to repurchase its shares, shareholders must
grant such authority to its directors. Such an authority can be renewed on an
annual basis but must not exceed 18 months in duration. Shareholder authority
can be given subject to conditions and limitations, in particular, as to the
number of shares to be purchased and the price to be paid.
ACTION BY WRITTEN CONSENT
Starnet Communications International (DE) Inc. Under Delaware law, unless
otherwise provided in the certificate of incorporation, stockholders may take
any action required or permitted to be taken at a stockholders meeting without a
meeting if the action is consented to in writing by stockholders entitled to
cast the same number of votes that would be required to take that action at a
meeting at which stockholders were present and voting in person. Starnet
Communications International (DE) Inc. provides for the same ability in its
certificate of incorporation.
World Gaming Plc. If authorized by its articles of association, the
shareholders of a public company may make decisions in writing. However, such
consent must be signed by or on behalf of
33
every person entitled to attend and vote at general meetings of the company.
World Gaming Plc's articles of association make provisions for unanimous
decisions in writing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Starnet Communications International (DE) Inc. Delaware law generally
permits a corporation to provide indemnification and advancement of expenses, by
bylaw provision, agreement or otherwise, against judgments, fines, expenses and
amounts paid in settlement actually and reasonably incurred by the person in
connection with a proceeding if the person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation.
The bylaws of Starnet Communications International (DE) Inc. provide for
indemnification on the part of Starnet Communications International (DE) Inc. to
the fullest extent permitted by law.
World Gaming Plc. English law does not permit a company to indemnify a
director or an officer of the company or any person employed by the company as
an auditor against any liability that, by virtue of any rule of law, would
otherwise attach to him in respect of negligence, default, breach of duty or
breach of trust in relation to the company, except liability incurred by such
director, officer or auditor in defending any legal proceedings (whether civil
or criminal) in which judgment is given in his favor or in which he is acquitted
or in certain instances in which, although he is liable, a court finds that such
director, officer or auditor acted honestly and reasonably and that, with regard
to all the circumstances, he ought fairly to be excused and relief is granted by
the court. English law enables companies to purchase and maintain insurance for
directors, officers and auditors against any liability that would otherwise
attach to them in respect of any negligence, default, breach of duty or breach
of trust in relation to the company. World Gaming Plc's articles of association
entitles every director, secretary or manager of World Gaming Plc, to be
indemnified by World Gaming Plc against liabilities incurred during the
discharge of his or her duties including where judgment is given in his or her
favor or if the claim is disposed of where he or she has not been found to have
been in material breach of his or her duty.
LIMITED LIABILITY OF DIRECTORS
Starnet Communications International (DE) Inc. Delaware law permits the
adoption of a charter provision limiting or eliminating the monetary liability
of a director to a corporation or its stockholders by reason of a director's
breach of the fiduciary duty of care. However, Delaware law does not permit any
limitation of the liability of a director for breaching the duty of loyalty to
the corporation or its stockholders.
The certificate of incorporation of Starnet Communications International
(DE) Inc. eliminates the monetary liability of a director to the fullest extent
permitted by Delaware law and any director exempting him or her from, or
indemnifying him or her against, any liability in respect of any fraud or
dishonesty of which he or she may be guilty in relation to the company.
World Gaming Plc. Under English law, a director must act honestly and in
good faith, in the best interests of the company, its shareholders, employees
and creditors and exercise due care, diligence and skill in performing his
duties. English law does not permit or enable a director or a company to avoid
or limit the directors liability by reason of a director's breach of any
fiduciary duties of care.
English law does not prohibit an English company from adopting a provision
in its articles of association disapplying restrictions against directors
profiting from their position or from acting in a position of conflict of
interest (for example taking a directorship with a rival company). World Gaming
Plc's articles of association provide that directors may have permitted
interests, as specified in the articles of association, provided that the board
of directors is notified of such interests in accordance with the articles.
Permitted interests include a directorship or employment with a company promoted
by
34
World Gaming Plc and being interested in a contract or arrangement in which
World Gaming Plc is interested.
INTERESTED PARTY TRANSACTIONS
Starnet Communications International (DE) Inc. Under Delaware law, no
contract or transaction between a corporation and one or more of its directors
or officers, or between a corporation or another entity in which one or more of
its directors or officers have a financial interest, shall be void or voidable
solely for that reason or solely because the director or officer is present at
or participates in that meeting which authorizes the contract or solely because
those directors' votes are counted for that purpose if:
- the material facts of the relationship or interest are known to the board
of directors and the board of directors in good faith authorizes the
contract by the affirmative vote of the disinterested directors;
- the material facts of the relationship or interest are known to the
stockholders and the contract is specifically approved in good faith by
the stockholders; or
- the contract is fair to the corporation at the time it is authorized.
Interested directors may be counted in determining the presence of a quorum at a
meeting which authorizes the contract or the transaction.
The bylaws of Starnet Communications International (DE) Inc. provides that a
proposed contract or transaction involving an interested party, which includes
10% holders of Starnet Communications International (DE) Inc.'s outstanding
stock in addition to the parties identified above, may not be consummated unless
it is authorized at a board meeting at which:
- all material facts as to the relationship or interest of the interested
party have been disclosed; and
- a majority of the directors who are not interested parties have authorized
the contract or transaction following such full disclosure.
World Gaming Plc. Under English law, there are various restrictions
concerning dealings between a company and its directors or persons connected
with its directors. Failure of a director to declare his interest in any
contract entered into or to be entered into is a criminal offense. However, such
failure does not make the contract invalid or unenforceable. Any substantial
property transaction entered into between the company and a director or a person
connected with a director must be approved in advance by a resolution of the
shareholders of the company. Any failure to comply with this requirement makes,
among other things, the contract voidable at the election of the company. A
director is duty bound to declare his interest in any shares in a company of
which he is a director. English law also includes a number of prohibitions and
restrictions on a company entering into loan or quasi-loan agreements with its
directors or persons connected with its directors. In addition, it is common for
the articles of association of English companies to contain additional
restrictions on dealings between the company and its directors. These often
require disclosure beyond that which is required by English law.
SHAREHOLDERS' SUITS
Starnet Communications International (DE) Inc. Delaware law requires only
that the stockholder bringing a derivative suit must have been a stockholder at
the time of the wrong complained of or that the stock devolved to him or her by
operation of law from a person who was a stockholder in that situation. In
addition, the stockholder must remain a stockholder throughout the litigation.
35
World Gaming Plc. There are a number of circumstances under which a
shareholder in an English company can bring proceedings in respect of his
shareholdings. Generally speaking, only the directors of a company can bring a
suit in its name. However, a shareholder is entitled to bring proceedings in the
name and on behalf of the company in certain limited circumstances. These will
include a situation where the directors have acted in breach of their duties to
the company and, by virtue of a shareholding control of the company, are able to
prevent proceedings being brought by the company itself. A shareholder is also
entitled to bring proceedings directly against the company to enforce various
personal rights, including the rights to vote at general meetings. There are two
statutory provisions under which a shareholder may seek redress in respect of
the management of a company. Under section 459 of the Companies Act 1985, a
court has the power to grant a remedy to a shareholder who can establish that
the affairs of the company have been managed in a manner unfairly prejudicial to
his interests as a member of the company. Further, under Section 122(1)(g) of
the Insolvency Act 1986, a court has power to order a winding up of a company
where it is just and equitable to do so.
SHAREHOLDER APPROVAL OF BUSINESS COMBINATIONS
Starnet Communications International (DE) Inc. Under Delaware law, holders
of a majority of the shares entitled to vote must approve a merger or
consolidation, sale, lease, exchange or other disposition of all or
substantially all of the property of the corporation not in the usual and
regular course of the corporation's business, or a dissolution of the
corporation. In addition, under Delaware law, class voting rights exist with
respect to amendments to the charter that adversely affect the terms of the
shares of a class. See "Amendment of Governing Documents--Starnet Communications
International (DE) Inc." below. These class voting rights do not exist as to
other extraordinary matters, unless the charter provides otherwise. The
certificate of incorporation of Starnet Communications International (DE) Inc.
does not provide otherwise.
In addition, because Starnet Communications International (DE) Inc. is a
Delaware corporation, it has the benefit of a Delaware law that generally
prohibits a publicly held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the time of the transaction in which the person became an interested
stockholder, unless:
- prior to that time, the board of directors approves the transaction or the
business combination;
- upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at
least 85% of the outstanding voting stock, excluding for purposes of
determining the number of shares outstanding, shares owned by directors
who are also officers and by certain employee plans; or
- on or after that time the board of directors and the stockholders by an
affirmative vote of at least 66 2/3% of the outstanding voting stock which
is not owned by the interested stockholder approve the transaction.
The definition of "business combinations" includes mergers, assets sales and
other transactions resulting in a financial benefit to the interested
stockholder. An "interested stockholder" is a person who, together with
affiliates and associates, owns or, within three years, did own 15% or more of
the corporation's voting stock.
World Gaming Plc. Under the Companies Act, fundamental corporate changes,
such as the passing of a resolution for winding up, non pro-rata issues of
shares for cash, reductions of capital (subject to sanction by the Court) and
certain repurchases of shares may be authorized by a special resolution passed
at a general meeting of shareholders. Subject to the provisions of the Companies
Act, if at such time the share capital of the company is divided into different
classes of shares and the amendment or other resolution would cause any of the
special rights attached to any class of shares to be varied or
36
abrogated, the amendment must also be sanctioned by the holders of at least
three-quarters in nominal value of the class concerned who are entitled to vote.
The Companies Act provides for schemes of arrangement, which are
arrangements or compromises between a company and any class of its shareholders
(or any class of its creditors) and are used for certain types of
reconstructions, amalgamations, capital reorganizations or takeovers. They
require the approval at an extraordinary general meeting of the company convened
by order of the court of a majority in number of the shareholders representing
three-fourths in value of the capital or class of creditors or shareholders or
class of shareholders present and voting, either in person or by proxy, and the
sanction of the High Court. Once so approved and sanctioned, all creditors or
shareholders (of the relevant class) are bound by the terms of the scheme, a
dissenting shareholder would have no rights comparable to dissenter's rights
described below. A scheme of reconstruction under section 110 of the Insolvency
Act may be made when a company is being wound up voluntarily under which, with
the sanction of a special resolution of shareholders in a general meeting, the
whole or part of the company's business or property is transferred to a second
company in consideration for the issue or transfer to them of shares in the
second company. Any dissenting shareholder can require the liquidator to abstain
from carrying the resolution into effect or to purchase his interest at a price
agreed or determined by arbitration. The Companies Act also provides that where
a takeover offer (as defined therein) is made for the shares of a company
incorporated in the United Kingdom and, within four months of the date of the
offer the offeror has, by virtue of acceptances of the offer, acquired or
contracted to acquire not less than nine-tenths in value of the shares of any
class to which the offer relates, the offeror may, within two months of reaching
the nine-tenths level, by notice require shareholders who do not accept the
offer to transfer their shares on the terms of the offer. A dissenting
shareholder may apply to the Court within six weeks of the date on which such
notice was given objecting to the transfer or its proposed terms. The Court is
unlikely (absent fraud or oppression) to exercise its discretion to order the
acquisition not take effect, but it may specify such terms of the transfer as it
finds appropriate. A minority shareholder is also entitled in these
circumstances to require the offeror to acquire his shares on the terms of the
offer.
In the United Kingdom, takeovers of public companies are regulated by the
City Code. The City Code is administered by the Takeover Panel, a body
comprising representatives of certain City of London financial and professional
institutions which oversees the conduct of such takeovers. One of the provisions
of the City Code requires that:
- when any person acquires, whether by a series of transactions over a
period of time or not, shares which (taken together with shares held or
acquired by persons acting in concert with him) carry 30 percent or more
of the voting rights of a public company; or
- when any person, together with a person acting in concert with him, holds
not less than 30 percent but not more than 50 percent of the voting rights
and such person together with any persons acting in concert with him,
acquires any additional shares carrying voting rights,
such person must generally make an offer for all of the equity shares of the
company (whether voting or non-voting) for cash, or accompanied by a cash
alternative, at not less than the highest price paid for the relevant shares
during the 12 months preceding the date of the offer.
Under English law, there are no general restrictions on the powers of the
directors of a company to acquire, deal with an dispose of the company's assets.
However, in certain circumstances a public company may become subject to
restrictions on dealings pursuant to regulations imposed by the listing
authorities.
37
AMENDMENT OF GOVERNING DOCUMENTS
Starnet Communications International (DE) Inc. Under Delaware law, the
certificate of incorporation may be amended if:
- the board of directors sets forth the proposed amendment in a resolution,
declares the amendment advisable and directs that it be submitted to a
vote at the meeting of stockholders; and
- unless the charter requires the vote of a greater number of shares,
holders of at least a majority of shares entitled to vote approve the
amendment.
Under Delaware law, the board of directors may amend bylaws if so authorized
in the certificate of incorporation. Our certificate of incorporation does so
authorize. The stockholders of a Delaware corporation also have the power to
amend bylaws.
World Gaming Plc. Under English law, shareholders have the authority to
alter, delete, substitute or add to the objects clause in a company's memorandum
and alter provisions of its articles of association by a vote of not less than
three-quarters of the shareholders entitled to vote and who do vote, either in
person or by proxy, at a general meeting subject, in the case of certain
alterations to the memorandum of association, to the right of dissenting
shareholders to apply to the Courts to cancel the alterations. Under English
law, the board of directors is not authorized to change the memorandum or the
articles of association of a company. Amendments affecting the rights of the
holders of any class of shares may, depending on the rights attached to such
class and the nature of the amendments, also require approval of the class(es)
affected in separate class meeting(s).
APPRAISAL RIGHTS
Starnet Communications International (DE) Inc. Under Delaware law, a
stockholder of a corporation does not have appraisal rights in connection with a
merger or consolidation or, in the case of a disposition, if:
- the shares of the corporation are listed on (1) a national securities
exchange or (2) designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or (3) held of record by more than 2,000 stockholders; or
- the corporation will be the surviving corporation of the merger and
approval of the merger requires no vote of the stockholders of the
surviving corporation.
However, a stockholder is entitled to appraisal rights in the case of a
merger or consolidation if an agreement of merger or consolidation requires the
stockholder to accept in exchange for its shares anything other than:
- shares of stock of the corporation surviving or resulting from the merger
or consolidation;
- shares of any other corporation that on the effective date of the merger
or consolidation will be either (1) listed on a national securities
exchange or (2) designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or (3) held of record by more than 2,000 stockholders;
- cash in lieu of fractional shares of the corporation; or
- any combination thereof.
World Gaming Plc. While English law does not generally provide for appraisal
rights, if a shareholder applies to a Court under certain circumstances the
Court may specify such terms for the acquisition as it considers appropriate.
English law provides shareholders with rights to dissent in respect of a
reorganization of a company under section 110 of the Insolvency Act of 1986. In
addition,
38
dissenters' rights exist where an offeror who, pursuant to a takeover offer for
a company, has acquired or contracted to acquire not less than nine-tenths in
value of the shares to which the offer relates, seeks to acquire compulsorily
outstanding minority shareholdings.
ABILITY TO BRING SUITS, ENFORCE JUDGMENTS AND ENFORCE U.S. LAW
Starnet Communications International (DE) Inc. As a U.S. company
incorporated under the laws of Delaware, investors generally can initiate law
suits in the U.S. against Starnet Communications International (DE) Inc. and its
directors and officers and can enforce lawsuits based on U.S. federal securities
laws in U.S. courts.
World Gaming Plc. As an English company and to the extent World Gaming Plc's
officers and directors will be located outside of the U.S. and the registered
office will be located in England and Wales, U.S. shareholders may find it
difficult to:
- effect service of process within the United States upon World Gaming Plc
and its officers and directors located outside the U.S.;
- enforce in U.S. courts or outside the U.S., judgments obtained against
those persons in U.S. courts;
- enforce in U.S. courts judgments against those persons in courts in
jurisdictions outside the U.S.; and
- enforce against those persons in the U.K., whether in original actions or
in actions for the enforcement of judgments of U.S. courts, civil
liabilities based solely upon the U.S. federal securities laws.
INSPECTION OF BOOKS AND RECORDS
Starnet Communications International (DE) Inc. Under Delaware law, any
stockholder may inspect the corporation's books and records for a proper
purpose.
World Gaming Plc. Under English law, any person (including a stockholder)
may inspect various corporate documents, including the register of stockholders,
a register of debenture holders, the register of directors and secretary and the
register of directors' interests. In addition, members are entitled to inspect
various further documents, including copies of directors' service contracts and
the minutes of shareholders meetings. Stockholders are also entitled to receive
a copy of the annual accounts of a company.
REMOVAL OF DIRECTORS; VACANCIES ON THE BOARD OF DIRECTORS
Starnet Communications International (DE) Inc. Under Delaware law, any
director or the entire board of directors may be removed, with or without cause,
by the holders of a majority of shares entitled to vote at an election of
directors.
Under the bylaws of Starnet Communications International (DE) Inc.,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors may by filled by a majority of the board of
directors then in office, though less than a quorum, or by a sole remaining
director. If there are no directors then in office, a special meeting of
stockholders may be called in accordance with the certificates of incorporation
and bylaws and Delaware law, or application to the Delaware Court of Chancery
for a decree summarily ordering an election for directors.
If at the time of filling any vacancy or newly created directorship
resulting from any increase in the authorized number of directors, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to such increase), the Delaware Court of Chancery
may,
39
upon application of any stockholder or stockholders holding at least 10% of the
outstanding stock entitled to vote at an election of directors, summarily order
an election for directors or to replace the directors chosen by the directors
then in office.
World Gaming Plc. Under English law, shareholders have the right to remove a
director without cause by ordinary resolution of which special notice (requiring
28 clear days) has been given to the company, irrespective of the provisions of
the articles of association of the company.
Appointments to fill vacancies on the board of directors and appointments of
additional directors may be made by the board itself. A person co-opted in this
way holds office until the annual general meeting following their appointment.
Unless specially extended in the company's articles of association all of the
directors of a company are required to retire from office at the first annual
general meeting of the company and one third of them at each subsequent annual
general meeting. The retiring directors are eligible for re-election and are
automatically re-elected unless someone else is appointed, or the company
resolves not to re-elect them, or to fill the vacancy.
CLASSIFIED BOARD OF DIRECTORS
Starnet Communications International (DE) Inc. Under Delaware law, a
Delaware corporation may establish up to three classes of directors, as
specified either in the corporation's bylaws or certificate of incorporation.
Starnet Communications International (DE) Inc. has not provided for
classification of its board of directors.
World Gaming Plc. There are no provisions under English law similar to board
classification. However, it is open for a board of directors to organize its
affairs as it sees fit. It is therefore common for powers to be delegated by the
board to committees of the board. A board of directors will usually comprise
both executive and non-executive directors. Under English law there is only one
class of director, although a director may be an executive (an employee involved
in the day to day running of World Gaming Plc) or non-executive (not involved in
the day to day running, but more a strategic advisor).
CONTENT AND TIMING OF REPORTS AND NOTICES OF THE COMPANIES; DEFINITION OF
FOREIGN PRIVATE ISSUER
The content and timing of reports and notices that World Gaming Plc will
file with the SEC differ in several respects from the reports and notices that
Starnet Communications International (DE) Inc. currently files. World Gaming Plc
is a foreign private issuer for the purposes of the reporting rules under the
Securities Exchange Act of 1934, or Exchange Act.
As a U.S. reporting company, Starnet Communications International (DE) Inc.
currently must file with the SEC, among other reports and notices:
- an Annual Report on Form 10-K within 90 days after the end of each fiscal
year;
- a Quarterly Report on Form 10-Q within 45 days after the end of each
fiscal quarter; and
- Current Reports on Form 8-K upon the occurrence of various corporate
events.
As a foreign private issuer, pursuant to the requirements of the Exchange
Act, World Gaming Plc will be required to:
- file with the SEC an annual report on Form 20-F within six months after
the end of each fiscal year; and
- furnish reports on Form 6-K upon the occurrence of significant corporate
events.
As a foreign private issuer, World Gaming Plc is not required under the
Exchange Act to file quarterly reports on Form 10-Q after the end of each
financial quarter.
40
In addition, the content and timing of reports and notices that holders of
World Gaming Plc ordinary shares will receive will differ from the reports and
notices that are currently received by Starnet Communications International
(DE) Inc. stockholders. As a U.S. reporting company, Starnet Communications
International (DE) Inc. must mail to its stockholders in advance of each annual
meeting of stockholders:
- an annual report containing audited financial statements; and
- a proxy statement that complies with the requirements of the Exchange Act.
As a foreign private issuer, World Gaming Plc will be exempt from the rules
under the Exchange Act prescribing the furnishing and content of annual reports
and proxy statements to its share owners. World Gaming Plc expects to retain its
status as a foreign private issuer after the completion of the merger. Under SEC
rules, World Gaming Plc will qualify for foreign private issuer status so long
as:
1. 50% or more of World Gaming Plc's ordinary shares are beneficially owned
by shareholders who are not residents of the U.S.; or
2. all three of the following conditions continue to be satisfied:
- at least 50% of World Gaming Plc's directors and its executive officers
are neither citizens nor residents of the U.S.;
- at least 50% of World Gaming Plc's assets are located outside the U.S.;
and
- World Gaming Plc's business is administered principally outside the
U.S.
After completion of the merger, U.S. share owners may hold more than 50% of
World Gaming Plc's ordinary shares. However, World Gaming Plc expects that after
the merger at least 50% of its directors and executive officers will be persons
who are not U.S. citizens or residents and, on a consolidated basis, at least
50% of its assets will be located outside of the U.S. Furthermore, World Gaming
Plc will continue to administer its business from outside the U.S. Accordingly,
World Gaming Plc expects to qualify and continue to qualify as a foreign private
issuer after completion of the merger. If World Gaming Plc at any time losses
its status as a foreign private issuer, it will be required to file Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K. In addition, World Gaming Plc will become subject to the rules under
the Exchange Act regarding the furnishing and content of annual reports and
proxy statements to its share owners.
After completion of the merger, we expect that the Starnet Communications
International (DE) Inc. common stock will be deregistered under the Exchange
Act.
41
MATERIAL TAX CONSIDERATIONS
The following discussion sets forth the material U.S. federal income tax
consequences and the material U.K. tax consequences to U.S. holders of Starnet
Communications International (DE) Inc. common stock with respect to the
reorganization and the ownership and disposition of World Gaming PLC ordinary
shares. This summary is for general information purposes only. A "U.S. Holder"
is a beneficial owner of Starnet Communications International (DE) Inc. common
stock or of World Gaming Plc ordinary shares that is:
- a citizen or individual resident of the United States;
- a corporation or other entity taxable as a corporation for U.S. federal
income tax purposes that is created or organized in the United States or
under the law of the United States or of any state or the District of
Columbia;
- an estate whose income is includible in gross income for U.S. federal
income tax purposes regardless of its source; or
- a trust if (1) a court within the United States is able to exercise
primary supervision over the administration of the trust, and one or more
United States persons have the authority to control all substantial
decisions of the trust, or (2) the trust was in existence on August 20,
1996 and properly elected to continue to be treated as a United States
person.
WE URGE YOU TO CONSULT YOUR OWN TAX ADVISERS REGARDING YOUR PARTICULAR TAX
CONSEQUENCES.
UNITED KINGDOM TAX CONSEQUENCES
The following discussion sets forth the material U.K. tax consequences to
U.S. Holders of Starnet Communications International (DE) Inc. common stock with
respect to the Reorganization and the ownership and disposition of World Gaming
Plc ordinary shares. This summary is for general information purposes only. It
does not purport to be a comprehensive description of all of the tax
considerations that may be relevant to each person's decision with respect to
the merger.
This discussion is based on the current provisions of U.K. domestic tax law,
current regulations promulgated thereunder, judicial decisions and published
positions of the Inland Revenue and/or Customs and Excise and other applicable
authorities, all as in effect as of the date hereof, and each of which is
subject to change or to differing interpretations (possibly with retroactive
effect). This discussion does not address all aspects of U.K. taxation that may
be relevant to any particular shareholder based on the shareholder's individual
circumstances.
TAX CONSEQUENCES FOR U.S. HOLDERS
THE REORGANIZATION
A U.S. Holder who is neither resident nor ordinarily resident in the U.K.
for tax purposes will not be subject to any U.K. tax on any gain recognized on
the exchange of Starnet Communications International (DE) Inc. common stock for
World Gaming Plc ordinary shares pursuant to the merger.
AFTER THE REORGANIZATION
DISTRIBUTIONS ON ORDINARY SHARES
Under the terms of the U.S.-U.K. income tax treaty, a U.S. Holder generally
is entitled to receive from the U.K. Inland Revenue, in respect of a cash
dividend, a cash payment equal to the amount of the U.K. tax credit to which an
individual resident in the United Kingdom for U.K tax purposes would have been
entitled had that resident received the dividend. Currently, an individual
shareholder resident in the United Kingdom generally is entitled to a tax credit
(the "U.K. tax credit") in respect of
42
any cash dividend received equal to one-ninth of the dividend. Under the
U.S.-U.K. income tax treaty, in the case of a portfolio U.S. Holder, the payment
from the U.K. Inland Revenue is reduced by a U.K. withholding tax equal to the
lesser of (1) 15 percent of the sum of the dividend and the amount of the U.K.
tax credit and (2) the amount of the U.K. tax credit. For this purpose, a
portfolio U.S. Holder is a U.S. person other than a corporation that either
alone or together with one or more associated corporations controls, directly or
indirectly, at least ten percent of our voting stock. Currently, a portfolio
U.S. Holder would not be entitled to receive any cash payment in respect of the
U.K. tax credit for dividends paid by World Gaming Plc. For example, if a
portfolio U.S. Holder receives a dividend of L90, the U.S. Holder would be
entitled to a U.K. tax credit of L10. However, because the maximum U.K.
withholding tax, which would be 15 percent of L100, exceeds the U.K. tax credit,
the U.K. Inland Revenue would not make any actual payment, and the U.S. Holder
would receive only the cash dividend, which in this case would be L90.
TAXATION OF CAPITAL GAINS OF U.S. HOLDERS
A U.S. Holder who is neither resident nor ordinarily resident in the United
Kingdom for U.K. tax purposes generally will not be subject to U.K. tax on
capital gains realized on the disposition of World Gaming Plc ordinary shares.
INHERITANCE TAX AND GIFT TAXES ON U.S. HOLDERS
World Gaming Plc ordinary shares are assets situated in the United Kingdom
for the purposes of U.K. inheritance tax. An individual who is domiciled in the
United States and who is not a national of the United Kingdom for purposes of
the U.S.-U.K. estate and gift tax treaty, however, generally will not be subject
to U.K. inheritance tax in respect of the World Gaming Plc ordinary shares on
the individual's death or to U.K. gift tax on a gift of the World Gaming Plc
ordinary shares during the individual's lifetime, provided that any applicable
U.S. federal estate or gift tax liability is paid. In the exceptional case where
the World Gaming Plc ordinary shares are subject both to U.K. inheritance tax
and to U.S. federal estate or gift tax, the U.S.-U.K. estate and gift tax treaty
generally provides for any tax paid to the United Kingdom to be credited against
tax payable to the United States or for any tax paid to the United States to be
credited against tax payable to the United Kingdom based on priority rules set
out in that treaty. Where, however, the ordinary shares are shares in a company
which when taken with its subsidiaries exists wholly or mainly for trading
purposes, business property relief from U.K. inheritance tax may be available to
reduce or eliminate the tax unless the ordinary shares of that holder are quoted
on a recognized stock exchange (E.G., NASDAQ or the Official List of the London
Stock Exchange) and do not carry control.
STAMP DUTY AND STAMP DUTY RESERVE TAX
A transfer for value of the World Gaming Plc ordinary shares will normally
be subject to ad valorem stamp duty or to stamp duty reserve tax. Stamp duty tax
will arise on the execution of an instrument to transfer World Gaming Plc
ordinary shares. Stamp duty reserve tax will arise on the entry into an
agreement to transfer World Gaming Plc ordinary shares, but the charge may be
canceled if stamp duty has been paid. Stamp duty and stamp duty reserve tax are
normally a liability of the purchaser. The rate of stamp duty payable is
0.5 percent of the consideration rounded to the nearest L 5, and 0.5 percent of
the consideration in the case of stamp duty reserve tax.
There is no charge to U.K. stamp or other duties on the issue by a U.K.
incorporated company of shares in itself.
43
TAXATION OF WORLD GAMING PLC
GENERAL
A company that is incorporated in the United Kingdom generally is treated as
being resident in the United Kingdom for tax purposes. However, this treatment
will not apply if the management and control of the U.K. resident company
(broadly the exercise by the board of directors of that U.K. resident company of
their function) takes place in another country with which the United Kingdom has
an appropriate double tax treaty. A company whose management and control is
exercised in the United Kingdom is also generally resident in the United
Kingdom.
A company that is tax resident in the United Kingdom is liable to U.K. tax
on its worldwide income and gains at a maximum effective rate of 30 percent.
If the tax residence of a U.K. company changes from the United Kingdom to
that of another jurisdiction, by virtue of the above provisions it would be
deemed to have disposed of all of its chargeable assets, I.E., its shares in its
subsidiaries and any other chargeable assets that it owns, including the
goodwill of any trade carried on by it, for each asset's market value at the
date of the change of residence. It is, therefore, crucial to ensure that the
exercise by the board of directors of their functions is exercised so as to
ensure that there is no change of a U.K. resident company's tax residence out of
the United Kingdom.
The Reorganization involves a taxable disposal in the United Kingdom that
involves a small gain taxable at rates of up to 30%.
TAXATION OF A U.K. COMPANY THAT CONTROLS CERTAIN CONTROLLED FOREIGN
COMPANIES
If after the merger any of the subsidiaries of a U.K. resident company are
deemed resident in a tax jurisdiction so that that subsidiary is liable to tax
at a rate that is less than 75 percent of the tax it would have paid on those
profits if liable to tax in the United Kingdom, then unless 90 percent of that
subsidiary's profits are paid up as a dividend to a U.K. resident company, those
profits will be treated as a dividend received by the U.K. company and taxed
accordingly. Thus, if the operation in a low tax country is carried on by a
company that is managed or resident in that low tax country, these provisions
could apply to it unless that operation had both a proper business establishment
in that country and dealt mainly with non-associates.
TAXATION OF CERTAIN DIVIDENDS RECEIVED BY A U.K. HOLDING COMPANY
Immediately after the merger, WG International Limited will own the entire
issued share capital of Starnet Communications International (DE) Inc., which in
turn will wholly own the operating subsidiaries of Starnet Communications
International (DE) Inc. (Starnet group). Thus, dividends received by
WG International Limited will pass through its U.S. subsidiary and be subjected
(in addition to any tax payable in the country of operation) to U.S. federal
income tax, generally at a rate of 34 percent or 35 percent (after giving credit
for any foreign income tax paid by the operating subsidiary). A dividend paid by
the U.S. subsidiary will be subject to a U.S. withholding tax unless the
earnings of the operating subsidiaries qualify the dividend for an exemption
from that tax. For U.K. corporation tax purposes, the dividend from the U.S.
subsidiary will be subject to U.K. tax payable at effective rates of between
20 percent and 30 percent, depending on the level of deemed or actual profits of
the group, but will be reduced by means of a credit for any U.S. withholding tax
and for the federal and state income tax paid by the U.S. subsidiary on the
earnings distributed by it. However, the credit cannot exceed the effective U.K.
corporation tax payable. Thus, the U.S. tax will exceed the U.K. tax, and no
credit will be available in respect of the excess. Further, the credit against
foreign taxes suffered on profits from which a dividend is paid is based on an
assumption that all available reliefs and exemptions from the foreign tax have
been claimed by the overseas company.
44
New rules come into force with effect from March 2001 which affect certain
overseas intermediate holding companies. It may become necessary to restructure
the Starnet group whether or not as a result of these rules.
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
This discussion is based on current provisions of the Internal Revenue Code
of 1986, as amended (referred to as the Code), current and proposed Treasury
regulations promulgated thereunder, judicial decisions and published positions
of the U.S. Internal Revenue Service (referred to as the IRS) and other
applicable authorities, all as in effect as of the date hereof, and each of
which is subject to change or to differing interpretations (possibly with
retroactive effect). This discussion does not address all aspects of U.S.
federal income taxation that may be relevant to any particular shareholder based
on the shareholder's individual circumstances. In particular, this discussion
considers only U.S. Holders that will own ordinary shares as capital assets and
does not address the potential application of the alternative minimum tax or the
U.S. federal income tax consequences to U.S. Holders that are subject to special
treatment, including U.S. Holders that:
- are broker-dealers or insurance companies;
- have elected mark-to-market accounting;
- are tax-exempt organizations;
- are financial institutions or "financial services entities";
- hold ordinary shares as part of a straddle, "hedge" or "conversion
transaction" with other investments;
- own at any time directly, indirectly or by attribution ordinary shares
having at least ten percent of the voting power of our stock;
- have a functional currency that is not the U.S. dollar; or
- are regulated investment companies.
In addition, this discussion does not consider the tax treatment of persons
who hold ordinary shares through a partnership or other pass-through entity.
This discussion does not address any aspect of state, local or non-U.S. tax laws
or any U.S. federal tax laws other than U.S. federal income tax laws.
Subject to the limitations described in the next paragraph, the following
discussion describes the material U.S. federal income tax consequences to a U.S.
Holder. In addition, certain material aspects of U.S. federal income tax
relevant to a holder other than a U.S. Holder, referred to as a "Non-U.S.
Holder," are discussed below.
TAX CONSEQUENCES FOR U.S. HOLDERS
THE REORGANIZATION
The reorganization generally will be treated as a taxable exchange in which
a U.S. Holder recognizes gain or loss. The amount of gain or loss recognized in
respect of each share of Starnet Communications International (DE) Inc. common
stock surrendered in the exchange will be the difference between the fair market
value of the World Gaming Plc ordinary share received in exchange therefor and
the adjusted tax basis of the Starnet Communications International (DE) Inc.
common share. That gain or loss will be capital gain or loss and will be
long-term capital gain or loss if the Starnet Communications International
(DE) Inc. common stock has been held for more than one year as of the date of
the reorganization. In the case of a U.S. Holder that is not a corporation,
long-term capital gain is eligible for a maximum 20 percent rate of taxation.
45
Each holder of Starnet Communications International (DE) Inc. common stock
that acquired that stock on exercise of an incentive stock option is, in
particular, urged to consult his own tax adviser, as the exchange of the Starnet
Communications International (DE) Inc. common stock for World Gaming Plc
ordinary shares pursuant to the reorganization is treated as a disposition of
the Starnet Communications International (DE) Inc. common stock for purposes of
the incentive stock option rules if the disposition occurs within one year of
the date of exercise of the option or two years from the date of grant of the
option. In that case, part or all of any gain recognized will be treated as
ordinary income. In general, the amount of gain treated as ordinary income will
not exceed the excess, if any, of the fair market value on the exercise date of
the option of each Starnet Communications International (DE) Inc. share acquired
pursuant to an incentive stock option over the exercise price of the option. Any
additional gain will be treated as capital gain and as long-term capital gain if
the Starnet Communications International (DE) Inc. common stock has been held
for more than one year as of the date of the reorganization.
AFTER THE REORGANIZATION
TAXATION OF DIVIDENDS PAID ON ORDINARY SHARES
A U.S. Holder will be required to include in gross income as ordinary income
an amount equal to the U.S. dollar value of any distribution paid on an ordinary
share, including any U.K. tax withheld from the amount paid, on the date the
distribution is received (based on the exchange rate on that date) to the extent
the distribution is paid out of our current and/or accumulated earnings and
profits as determined for U.S. federal income tax purposes. A distribution in
excess of earnings and profits will be treated first as a nontaxable return of
capital, reducing the U.S. Holder's basis in the ordinary share and, to the
extent in excess of basis, will be treated as gain from the sale or exchange of
the ordinary share. Under Revenue Procedure 2000-13, a portfolio U.S. Holder (as
defined above) may elect to be treated as receiving the U.K. tax credit in
respect of a dividend paid by World Gaming Plc, as described above in "MATERIAL
TAX CONSIDERATIONS--United Kingdom Tax Consequences--Tax Consequences for U.S.
Holders--DISTRIBUTIONS ON ORDINARY SHARES". A U.S. Holder that makes this
election will be treated (1) as having received additional dividend income equal
to the gross amount of the U.K. tax credit unreduced by any U.K. withholding tax
and (2) as having paid U.K. withholding tax in the same amount. Following the
example above in "MATERIAL TAX CONSIDERATIONS--United Kingdom Tax
Consequences--Tax Consequences for U.S. Holders of Ordinary Shares--
DISTRIBUTIONS ON ORDINARY SHARES", a portfolio U.S. Holder that made this
election would be treated for U.S. federal income tax purposes as receiving a
dividend in an amount equal to the U.S. dollar value of L 100 and as having paid
U.K. withholding tax in an amount equal to the U.S. dollar value of L 10. U.S.
Holders that are not portfolio U.S. Holders are subject to different rules.
Those rules, and the procedures for making the election described above, are set
forth in Revenue Procedure 2000-13.
A U.S. Holder generally may elect either to deduct or to credit all of the
foreign income taxes it pays or accrues in any taxable year and, consistent with
that election, may deduct or credit any U.K. income tax withheld at the source
on dividends we pay. A deduction reduces the amount of income that is subject to
tax, while a credit is a dollar-for-dollar reduction of the U.S. Holder's U.S.
federal income tax liability. An individual who does not elect to credit foreign
income taxes and who does not claim itemized deductions, but instead utilizes
the standard deduction, may not claim a deduction for the amount of U.K.
withholding taxes. Our dividends will not qualify for the dividends received
deduction generally available to corporations. The amount of foreign income tax
that may be claimed as a credit in any year is generally subject to complex
limitations, which apply on a shareholder-by-shareholder basis. The limitations
include, among others, rules that divide a U.S. Holder's foreign source income
among specified classes and prevent the credit for foreign income taxes imposed
on any class of foreign source income from exceeding the U.S. Holder's liability
for regular U.S. federal income tax on that class of income. For foreign tax
credit purposes, our dividends generally will be foreign source passive income.
In addition, a U.S. Holder cannot credit U.K. tax
46
withheld on a dividend received on any ordinary share that the U.S. Holder has
not held for at least 16 days of the 30-day period beginning on the date that is
15 days before the ex-dividend date or to the extent the U S. Holder is under an
obligation to make related payments with respect to substantially similar or
related property. Any days during which a U.S. Holder has substantially
diminished its risk of loss on the ordinary share are not counted toward meeting
the 16-day holding period required by the statute. The foreign tax credit rules
in the Code are exceedingly complex, and each prospective U.S. Holder is urged
to consult its own tax adviser regarding those rules.
TAXATION OF THE DISPOSITION OF ORDINARY SHARES
Subject to the rules applicable to passive foreign investment companies and
controlled foreign corporations, discussed below, upon the sale, exchange or
other disposition of an ordinary share, a U.S. Holder will recognize capital
gain or loss in an amount equal to the difference, if any, between the U.S.
Holder's basis in the ordinary share, which usually is the U.S. Holder's cost of
the share, and the amount realized on the disposition. Capital gain from the
sale, exchange or other disposition of an ordinary share held more than one year
is long-term capital gain, and, in the case of a U.S. Holder that is not a
corporation, is eligible for a maximum 20 percent rate of taxation. Gain or loss
recognized by a U.S. Holder on a sale, exchange or other disposition of an
ordinary share generally will be treated as U.S. source income or loss for
purposes of the U.S. foreign tax credit limitations. The deductibility of a
capital loss recognized on the sale, exchange or other disposition of an
ordinary share is subject to limitations.
TAX CONSEQUENCES IF WE ARE A PASSIVE FOREIGN INVESTMENT COMPANY
In general, we will be a passive foreign investment company, or PFIC, for
any taxable year if either (1) 75 percent or more of our gross income in the
taxable year is passive income, or (2) 50 percent or more of the average value,
or, if our ordinary shares are not regularly traded on any of certain designated
stock exchanges and if we so elect, the adjusted basis, of our assets in the
taxable year produces, or is held for the production of, passive income. The IRS
takes the position that interest on working capital is passive income. The PFIC
rules can produce unfavorable tax consequences for a U.S. Holder if we are
treated as a PFIC for any year while a U.S. Holder owns our stock, and if that
U.S. Holder does not make, or has not made, a timely election (which remains in
effect), for the first taxable year the U.S. Holder owns our stock and we are a
PFIC, either to treat us as a "qualified electing fund" or, if the election is
available, to mark the holder's ordinary shares to market. Under the PFIC
provisions, in any year in which the U.S. Holder either disposes of an ordinary
share at a gain or receives an "excess distribution," special rules apply to the
taxation of the gain and the excess distribution. For purposes of these rules,
"excess distributions" are the portion of our distributions in any taxable year,
whether or not out of our earnings and profits, that exceed 125 percent of the
average of the distributions (whose amount is subject to adjustment to the
extent there were excess distributions) that the U.S. Holder received on the
ordinary share during the previous three years, or, if shorter, the U.S.
Holder's holding period for the ordinary share on which the distributions are
paid. A disposition of an ordinary share, for purposes of these rules, includes
many transactions on which gain or loss is not realized under general U.S.
federal income tax rules. The gain or the excess distributions must be allocated
ratably to each day the U.S. Holder has held the ordinary share. Amounts
allocated to each year are taxable as ordinary income in their entirety and not
as capital gain, and amounts allocable to prior years may not be offset by any
deductions or losses. Amounts allocated to each prior year are taxable at the
highest rate in effect for that year and are subject to an interest charge at
the rates applicable to deficiencies for income tax for those periods. In
addition, a U.S. Holder's tax basis in an ordinary share that is acquired from a
decedent would not receive a step-up to fair market value as of the date of the
decedent's death but instead would be equal to the decedent's basis, if lower.
The special PFIC rules described above will not apply to a U.S. Holder if
the U.S. Holder makes a timely election (which remains in effect) to treat us as
a "qualified electing fund," or QEF, for the first
47
taxable year in which the U.S. Holder owns an ordinary share and in which we are
a PFIC, provided we comply with certain reporting requirements. Instead, a U.S.
Holder that has made a QEF election is required for each taxable year to include
in income a pro rata share of our ordinary earnings as ordinary income and a pro
rata share of our net capital gain as long-term capital gain, subject to a
separate election to defer payment of taxes, which deferral is subject to an
interest charge. We will supply U.S. Holders with the information needed to
report income and gain pursuant to a QEF election if we are classified as a
PFIC, provided we are able to do so. The QEF election is made on a
shareholder-by-shareholder basis and can be revoked only with the consent of the
IRS. A shareholder makes a QEF election by attaching to a timely filed U.S.
federal income tax return a properly completed IRS Form 8621 that reflects the
information provided in the PFIC Annual Information Statement supplied by us to
the shareholder and by filing a second copy of that form with the IRS Service
Center in Philadelphia, Pennsylvania. Even if a QEF election is not made, if we
are a PFIC, each U.S. Holder must file each year a completed IRS Form 8621 with
its U.S. Federal income tax return and file a second copy of that form with the
IRS Service Center in Philadelphia, Pennsylvania. The annual Form 8621 filed by
a person who has made a QEF election must include the information provided in
the PFIC Annual Information Statement supplied by us to the shareholder.
Although a QEF election generally cannot be revoked, if a U.S. Holder made a
timely QEF election for the first taxable year it owned an ordinary share and we
are a PFIC, the QEF election does not apply in a later taxable year in which we
do not satisfy the tests to be a PFIC. If a QEF election was not made for that
first taxable year, certain elections can be made while a foreign corporation
continues to satisfy the definition of a PFIC that, combined with a QEF
election, can cause the QEF election to be treated as having been made for that
first taxable year. Those elections may require the electing shareholder to
recognize gain on a constructive sale or to be taxable on the shareholder's
share of certain undistributed profits of the foreign corporation. If gain or
income is recognized pursuant to one of these elections, the rules set forth in
the preceding paragraph would apply to that gain or income. Even if a QEF
election ceases to apply because in a later taxable year we cease to satisfy the
tests to be a PFIC, the QEF election will apply again in any subsequent year in
which we again satisfy the tests to be a PFIC. Moreover, if you sell all of the
ordinary shares you own and later reacquire other ordinary shares, any QEF
election you have made that remains in effect will apply to the shares acquired
later. Treasury regulations provide that the Commissioner of Internal Revenue
has the discretion to invalidate or terminate a QEF election if the U S. Holder
or we (or an intermediary) fails to satisfy the requirements for the QEF
election.
The special PFIC rules described in the second preceding paragraph also will
not apply to a U.S. Holder if the U.S. Holder elects to mark the U.S. Holder's
ordinary shares to market each year, provided our stock is considered
"marketable stock" within the meaning of the Treasury regulations. A U.S. Holder
that makes this election will recognize as ordinary income or loss each year an
amount equal to the difference, if any, as of the close of the taxable year
between the fair market value of the holder's ordinary shares and the holder's
adjusted tax basis in the ordinary shares. Losses would be allowed only to the
extent of net mark-to-market gain previously included in income by the U.S.
Holder under the election for prior taxable years. If the mark-to-market
election were made, then the rules set forth above would not apply for periods
covered by the election. In general, the ordinary shares will be marketable
stock within the meaning of the Treasury regulations if they are traded, other
than in DE MINIMIS quantities, on at least 15 days during each calendar quarter
on a "qualified exchange or other market" within the meaning of the Treasury
regulations. A non-U.S. exchange is a "qualified exchange or other market" if
the exchange is regulated or supervised by a governmental authority of the
country where the marked is located and (1) the exchange has trading volume,
listing, financial disclosure, surveillance and other requirements designed to
prevent fraudulent and manipulative acts and practices, to remove impediments to
and perfect the mechanism of a free and open, fair and orderly, market, and to
protect investors, and the laws of the country where the exchange is located and
the rules of the exchange ensure that those requirements are actually enforced,
and (2) the rules of the exchange effectively promote active trading of listed
stocks. If a non-U.S. exchange has more than
48
one tier or market level on which stock may be separately listed or traded, each
such tier is treated as a separate exchange. If is not known at this time
whether the ordinary shares will be "marketable stock" within the meaning of the
Treasury regulations. If a U.S. Holder makes a mark-to-market election, but does
not make that election for the first taxable year in which the U.S. Holder owns
an ordinary share and in which we are a PFIC, and if the U.S. Holder had not
made a QEF election for that first such taxable year, the rules set forth in the
second preceding paragraph will apply to any distributions on an ordinary share
in the year of the mark-to-market election, to any gain recognized on an actual
sale of an ordinary share in that year and to any gain recognized in that year
pursuant to the mark-to-market election. Unlike the QEF rules, under which a
U.S. Holder is not required to continue to include in income any of our
undistributed earnings in any year we do not satisfy the tests to be a PFIC, if
the U.S. Holder made the QEF election in the first taxable year the U.S. Holder
owned our stock and we were a PFIC, the mark-to-market rules generally continue
to apply to a U.S. Holder who makes the mark-to-market election, even in years
we do not satisfy the tests to be a PFIC.
A U.S. Holder who owns ordinary shares during a year we are a PFIC, who did
not make a timely QEF election for the first taxable year in which the U.S.
Holder owns an ordinary share and in which we are a PFIC and who has not made a
mark-to-market election generally will remain subject to the rules set forth in
the third preceding paragraph for all taxable years. In that event, those rules
will apply to any gains on dispositions of ordinary shares and to any "excess
distributions." It is, however, possible for a U.S. Holder to avoid this "once a
PFIC, always a PFIC" result by electing to treat all of the U.S. Holder's
ordinary shares as sold for their fair market value as of the last day of the
last taxable year we satisfy the tests to be a PFIC. If a gain is recognized on
that constructive sale, the rules set forth in the third preceding paragraph
would apply to that gain.
We believe that we would not satisfy the tests to be a PFIC for the portion
of the year 2000 prior to the Reorganization had we been a U.K corporation
during that period, and based on our current business plan we do not believe we
will be a PFIC for the portion of 2000 after the Reorganization. However, the
tests for determining PFIC status are applied annually, and it is difficult to
make accurate predictions of future income and assets, which are relevant to
this determination. Moreover, many aspects of the taxation of internet
businesses that could be relevant to our status as a PFIC are subject to
considerable uncertainty. Accordingly, there can be no assurance that we will
not become a PFIC in 2000 or any subsequent year. If we determine that we have
become a PFIC, we plan to notify our U.S. Holders and provide them with the
information necessary to comply with the QEF rules. U.S. HOLDERS ARE URGED TO
CONSULT THEIR TAX ADVISERS ABOUT THE PFIC RULES, INCLUDING THE CONSEQUENCES TO
THEM OF MAKING A QEF OR MARK-TO-MARKET ELECTION WITH RESPECT TO OUR ORDINARY
SHARES IN THE EVENT THAT WE QUALIFY AS A PFIC.
CONTROLLED FOREIGN CORPORATION RULES
Special U.S. federal income tax rules apply to certain holders in a foreign
corporation classified as a "controlled foreign corporation," or CFC. A foreign
corporation will not constitute a CFC unless U.S. shareholders, each of whom
owns ten percent or more of its voting power ("10% Voting U.S. Shareholders"),
collectively own more than 50 percent of the total combined voting power or
total value of the corporation's stock. Any U.S. person that owns, directly or
indirectly through foreign persons, or is considered to own (by application of
certain constructive ownership rules) ten percent or more of the total combined
voting power of all classes of stock of a foreign corporation will be considered
to be a 10% Voting U.S. Shareholder. For purposes of the special rules that
apply on a taxable disposition of stock, the status of the foreign corporation
as a CFC or the status of a U.S. Holder as a 10% Voting U.S. Shareholder at any
time within five years prior to the taxable disposition can cause those rules to
apply. Based on the current ownership of its stock, World Gaming Plc believes
that it will not be a CFC immediately after the merger.
49
FOREIGN PERSONAL HOLDING COMPANY AND PERSONAL HOLDING COMPANY RULES
Special U.S. federal income tax rules apply to a holder in a "foreign
personal holding company," or FPHC, and to the U.S. source income of a foreign
corporation that is a "personal holding company." A foreign corporation will not
constitute a FPHC unless five or fewer individuals who are U.S. citizens or
residents own, directly or constructively, more than 50 percent of the voting
power or the value of its shares. A corporation will not constitute a "personal
holding company," or PHC, unless five or fewer individuals own, directly or
constructively, more than 50 percent of the value of its shares. Based upon the
current ownership of its stock, World Gaming Plc believes that it will not be a
FPHC or PHC immediately after the merger.
FOREIGN INVESTMENT COMPANY RULES
Special rules also apply to treat as ordinary income any gain realized on
the sale of shares of a "foreign investment company." World Gaming Plc believes
that it will conduct its business and obtain controlling interests in
subsidiaries so as not to be a "foreign investment company."
TAX CONSEQUENCES FOR NON-U.S. HOLDERS
Except as described in "Information Reporting and Back-up Withholding"
below, a Non-U.S. Holder of an ordinary share will not be subject to U.S.
federal income or withholding tax on any gain recognized on the exchange of
Starnet Communications International (DE) Inc. common stock for World Gaming Plc
ordinary shares pursuant to the merger or on the payment of dividends on, or
gain from a disposition of, an ordinary share, unless:
- the income or gain is effectively connected with the conduct by the
Non-U.S. Holder of trade or business in the United States and, in the case
of a resident of a country that has a treaty with the United States, the
income is attributable to a permanent establishment or, in the case of an
individual, a fixed place of business, in the United States;
- in case of gain from a disposition of Starnet Communications International
(DE) Inc. common stock or of an ordinary share, the Non-U.S. Holder is an
individual who holds the Starnet Communications International (DE) Inc.
common stock or the ordinary share as a capital asset and is present in
the United States for 183 days in more in the taxable year of the
disposition and does not qualify for an exemption; or
- the Non-U.S. Holder is subject to tax pursuant to the provisions of U.S.
tax law applicable to U.S. expatriates.
INFORMATION REPORTING AND BACK-UP WITHHOLDING
Under current U.S. federal income tax regulations, dividends we pay on
ordinary shares will not be subject to U.S. information reporting or to the
31 percent backup withholding unless they are paid in the United States through
a U.S. or U.S.-related paying agent, including a broker. If a U.S. Holder
furnishes the paying agent with a duly completed and signed IRS Form W-9, the
dividends will not be subject to backup withholding.
Non-U.S. Holders generally are not subject to information reporting or
back-up withholding with respect to dividends paid on, or upon the disposition
of, Starnet Communications International (DE) Inc. common stock or ordinary
shares, provided that the non-U.S. Holder provides a taxpayer identification
number, certifies to its foreign status or otherwise establishes an exemption.
The amount of any back-up withholding will be allowed as a credit against a
U.S. or Non-U.S. Holder's U.S. federal income tax liability and may entitle the
holder to a refund, provided certain required information is furnished to the
IRS.
50
TAXATION OF STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
THE REORGANIZATION
Starnet Communications International (DE) Inc. will not recognize any gain
or loss by virtue of the reorganization.
AFTER THE REORGANIZATION
After the reorganization, World Gaming Plc or WG International Limited will
be subject to U.S. federal income tax only to the extent that World Gaming Plc
or WG International Limited, respectively, derives U.S. source income that is
subject to U.S. withholding tax or income that is effectively connected with the
conduct of trade or business within the United States and is not exempt from
U.S. tax under the U.S.-U.K. income tax treaty. World Gaming Plc's indirect U.S.
subsidiary will continue to be subject to U.S. tax on its worldwide income,
including dividends, if any, it receives from non-U.S. subsidiaries, and
dividends, if any, it pays to WG International Limited may be subject to a U.S.
withholding tax, unless the earnings of the operating subsidiaries qualify the
dividends for an exemption from that tax.
MANAGEMENT
MANAGEMENT OF WORLD GAMING PLC
After the reorganization, the board of directors of World Gaming Plc will
consist of those persons who, at the effective time, are serving as directors of
Starnet Communications International (DE) Inc. except with respect to Dean
Grimm. Each director will serve the term of office for which he or she was
elected or appointed. After the reorganization, World Gaming Plc's executive
officers will be the same as those persons who are presently employed as
executive officers of Starnet Communications International (DE) Inc. immediately
prior to the merger.
COMMITTEES OF THE BOARD OF DIRECTORS
The committees of the board of directors of Starnet Communications
International (DE) Inc. immediately prior to the effective time will continue to
exist as committees of the board of directors of World Gaming Plc after the
reorganization with identical members and functions except with respect to Dean
Grimm.
LEGAL MATTERS
Orchard Solicitors, United Kingdom, as special United Kingdom counsel, has
passed upon certain legal matters in connection with World Gaming Plc ordinary
shares. Kingston Smith, registered U.K. auditors and chartered accountants, has
rendered an opinion regarding the United Kingdom tax consequences of the
reorganization referred to in "Material Tax Considerations" as the same involves
U.K. domestic tax law. Greenberg Traurig, LLP, McLean, Virginia, has rendered an
opinion regarding the United States federal income tax consequences of the
reorganization referred to in "Material Tax Considerations."
EXPERTS
The financial statements of Starnet Communications International (DE) Inc.
incorporated by reference in this proxy statement/prospectus and elsewhere in
the registration statement, as defined herein, to the extent and for the periods
indicated in their reports, appearing in Starnet Communications International
(DE) Inc.'s Annual Report on Form 10-K for the year ended April 30, 2000 have
been audited, in whole or in part, by HJ & Associates, LLC, independent
accountants, as indicated in their reports with respect thereto and are
incorporated by reference herein in reliance on the reports and given on the
authority of said firms as experts in accounting and auditing.
51
WHERE YOU CAN FIND MORE INFORMATION
World Gaming Plc has filed with the SEC a registration statement on
Form F-4 under the Securities Act of 1933. This proxy statement/prospectus,
which constitutes a part of the registration statement, does not contain all of
the information set forth in the registration statement, some parts of which are
omitted as permitted by the rules and regulations of the SEC. For further
information, reference is made to the registration statement.
Statements made in this proxy statement/prospectus as to the contents of any
contract, agreement or other document are not necessarily complete. With respect
to each contract, agreement or other document filed as an exhibit to the
registration statement or otherwise filed with the SEC, reference is made to the
copy so filed, and each such statement shall be deemed qualified in its entirety
by this reference.
Starnet Communications International (DE) Inc. is, and after the
reorganization, World Gaming Plc will be, subject to the informational
requirements of the Securities Exchange Act of 1934. Reports, proxy statements
and other information contain additional information about our company. You can
inspect and copy these materials at the Commission's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain information about
the Public Reference Room by calling the Commission at 1-800-SEC-0330. Copies of
reports, proxy and information statements and other information regarding
registrants that file electronically, which includes Starnet Communications
International (DE) Inc. are available on the Commission's Web Site at
http://www.sec.gov.
Upon completion of the reorganization, the Starnet Communications
International (DE) Inc. common stock will no longer be traded on the OTC
Bulletin Board and will no longer be registered pursuant to Section 12 of the
Exchange Act.
The following documents filed by Starnet Communications International
(DE) Inc. with the Commission pursuant to the Exchange Act are hereby
incorporated by reference in this proxy statement/prospectus:
(1) Annual Report on Form 10-K and Form 10-KA for the fiscal year ended
April 30, 2000 (File No. 0-92290);
(2) Quarterly Report on Form 10-Q for the quarterly period ended July 31,
2000;
(3) The description of the Starnet Communications International (DE) Inc.
common stock in the Registration Statement on Form 10-SB filed on
June 18, 1997, including any amendment or report for the purpose of
updating this description (Registration No. 0-29290).
Any statement contained in this proxy statement/prospectus or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this proxy statement/prospectus to the
extent that statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this proxy statement/prospectus.
All annual reports filed on Form 10-K and all Forms 10-Q and 8-K
subsequently filed by us prior to the completion of the reorganization are
hereby deemed incorporated herein by reference.
THE SEC ALLOWS US TO "INCORPORATE BY REFERENCE" INFORMATION INTO THIS PROXY
STATEMENT/PROSPECTUS, WHICH MEANS THAT WE CAN DISCLOSE IMPORTANT INFORMATION BY
REFERRING YOU TO ANOTHER DOCUMENT FILED SEPARATELY WITH THE SEC. COPIES OF THE
INCORPORATED DOCUMENTS, OTHER THAN EXHIBITS TO THOSE DOCUMENTS, UNLESS THOSE
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE, WILL BE FURNISHED UPON
REQUEST WITHOUT CHARGE TO EACH PERSON TO WHOM WE DELIVER THIS PROXY
STATEMENT/PROSPECTUS. WRITTEN OR TELEPHONE REQUESTS SHOULD BE DIRECTED TO
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC., THE CIBC BANKING CENTRE, OLD
PARHAM ROAD, P.O. BOX 3265, ST. JOHN'S, ANTIGUA, WEST INDIES, ATTENTION:
52
CORPORATE SECRETARY (TELEPHONE (268) 480-1650). IF YOU WOULD LIKE TO REQUEST
DOCUMENTS FROM US PLEASE DO SO BY NOVEMBER 24, TO RECEIVE THEM BEFORE THE
SPECIAL MEETING.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROXY STATEMENT/PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON HAVING BEEN AUTHORIZED.
THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION.
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
Neither delivery of this proxy statement/prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in our affairs since the date of this proxy statement/prospectus.
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a "safe
harbor" for forward-looking statements. This document, and the documents
incorporated by reference, or any other written or oral statements made by or on
behalf of our company may include forward-looking statements which reflect our
current views with respect to future events and financial performance. These
statements include forward-looking statements both with respect to our company
and the businesses in which we operate and/or invest, including the insurance
and reinsurance sectors in general, both as to underwriting and investment
matters. Statements which include the words "expect", "intend", "plan",
"believe", "project", "anticipate", "will" and similar statements of a future or
forward-looking nature identify forward-looking statements for purposes of the
Private Securities Litigation Reform Act of 1995.
All forward-looking statements address matters that involve risks and
uncertainties. Accordingly, there are or will be important factors that could
cause actual results to differ materially from those indicated in those
statements. We believe that these factors include, but are not limited to, the
following:
- those we discuss under "Risk Factors;"
- those we discuss or identify in our public filings with the SEC;
- growth and expansion opportunities;
- market positions;
- the conduct of worldwide operations;
- earnings improvements;
- cost savings;
- revenue growth;
- benefits anticipated from the merger;
- gains and losses of clients and client business and projects;
- changes in management or ownership of clients;
- retention of, and ability to attract, qualified employees; and the effects
of:
* foreign exchange rate fluctuations;
* regional, national and international economic conditions
* changes in regional, national and international laws;
* regulations and taxes;
53
* the occurrence of natural disasters;
* regional, national and international market and industry conditions; and
* regional, national and international political conditions.
The foregoing review of important factors should not be construed as
exhaustive and should be read in conjunction with other cautionary statements
that are included herein or elsewhere. We undertake no obligation to publicly
update or revise any forward-looking statement, whether as a result of new
information, future developments or otherwise.
54
APPENDIX I
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated , 2000 (this
"AGREEMENT"), by and among Starnet Communications International (DE) Inc., a
Delaware corporation (the "COMPANY"), World Gaming Plc, a public limited company
incorporated in England and Wales ("WORLD GAMING"), WG International Limited, a
private limited company incorporated in England and Wales and a wholly-owned
subsidiary of World Gaming ("LIMITED") and WG Reorganization Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Limited ("REORG SUB")(each a
"PARTY" and together the "PARTIES").
WHEREAS, the Company desires to reorganize its corporate structure into a
new holding company domiciled in England by, among other things, merging Reorg
Sub with and into the Company (the "REORGANIZATION");
WHEREAS, World Gaming, Limited and Reorg Sub have been formed and organized
at the direction of the Company for the purpose of, among other things,
effecting the Reorganization; and
WHEREAS, the respective Boards of Directors of the parties have approved
this Agreement and deem it advisable and in the best interests of their
respective companies and shareholders, if any, to consummate the Reorganization
on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained in this Agreement, the parties, intending to
be legally bound, agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER.
1.1.1 At the Effective Time (as defined in Section 1.1.2), Reorg Sub
shall be merged with and into the Company (the "MERGER") in accordance with the
Delaware General Corporation Law ("DGCL"), whereupon the separate existence of
Reorg Sub shall cease, and the Company shall be the surviving corporation in the
Merger ("SURVIVING CORPORATION") and shall continue as a wholly-owned subsidiary
of Limited to be governed by the laws of the State of Delaware, and the separate
corporate existence of the Company, with all its rights, privileges, immunities,
powers, franchises, restrictions, obligations, liabilities, disabilities and
duties, shall continue unaffected by the Merger except as set forth in this
Article I. The Merger shall have the effects specified in the DGCL.
1.1.2 In the event that this Agreement and the Merger and
Reorganization contemplated herein shall have been fully approved and adopted on
behalf of the Company in accordance with the DGCL and as soon thereafter as the
Board of Directors of the Company shall determine, following satisfaction or
waiver of the other conditions set forth in Section 2.1, the Company and Reorg
Sub shall file a certificate of merger with the Secretary of State of the State
of Delaware and make all other filings or recordings required by any other
applicable law in connection with the Merger. The Merger shall become effective
at the time the certificate of merger is duly filed with the Secretary of State
of the State of Delaware or at any later time as specified in the certificate of
merger (the "EFFECTIVE TIME").
SECTION 1.2 CONVERSION AND EXCHANGE OF SHARES. At the Effective Time, by
virtue of the Merger:
1.2.1 Each share of Common Stock, par value $.001 per share, of the
Company ("COMPANY COMMON SHARE") held by the Company as treasury stock
immediately prior to the Effective Time (each, an "EXCLUDED SHARE") shall be
canceled and no issuance of any consideration shall be made with respect to such
shares.
1.2.2 Each Company Common Share outstanding immediately prior to the
Effective Time, other than the Excluded Shares, shall be converted into and
shall be canceled in exchange for the right
to receive one (1) ordinary share, nominal value L0.01 each, of World Gaming
("WORLD GAMING ORDINARY SHARE"). Holders of Company Common Shares shall have the
right to dissent and seek appraisal rights in accordance with the DGCL and as
provided further in Section 1.8 ("DISSENTERS' APPRAISAL RIGHTS").
1.2.3 In consideration of the holders of the Company Common Shares
agreeing by passing the resolution in that behalf to the cancellation of the
Company Common Shares outstanding immediately prior to the Effective Time, other
than the Excluded Shares, and subject to compliance with the provisions of the
Companies Act 1985 and/or any other applicable provision of the law of England
and Wales, World Gaming, having directed that the Company shall be the
wholly-owned subsidiary of WA International Limited, which in turn shall be the
wholly-owned subsidiary of World Gaming shall allot and issue (or procure the
transfer) to the holders of the Company Common Shares (other than to the Company
in respect of the Excluded Shares and to any holder of Company Common Shares who
has elected to dissent and seek appraisal rights in accordance with the DGCL)
one (1) World Gaming Ordinary Share for each Company Common Share held
immediately prior to the Effective Time. The World Gaming Ordinary Shares shall
be issued and credited as fully paid and free from all claims, liens and other
encumbrances, and shall rank PARI PASSU in all respects with the other shares of
World Gaming then in issue.
1.2.4 Limited hereby undertakes to World Gaming that in consideration
of World Gaming directing that the Company should be wholly-owned by Limited and
in order to assist World Gaming in the performance of its obligations under this
Agreement (including, without limitation, the allotment of the World Gaming
Ordinary Shares pursuant to Section 1.2.3 hereof) it shall issue to World
Gaming, contemporaneously with the issue by World Gaming of its World Gaming
Ordinary Shares, such number of ordinary shares in Limited as shall equal the
number of World Gaming Ordinary Shares issued by World Gaming.
1.2.5 At the Effective Time, all Company Common Shares shall no longer
be outstanding, shall be canceled and retired and shall cease to exist, and each
certificate (a "COMMON CERTIFICATE") formerly representing any Company Common
Shares (other than Company Common Shares constituting Excluded Shares) shall
thereafter represent only the right to receive World Gaming Ordinary Shares as
provided in Section 1.2.2, the right, if any, to receive any distribution or
dividend pursuant to Section 1.3.6, in each case without interest, and if
properly perfected, Dissenters' Appraisal Rights.
1.2.6 Each share of common stock of Reorg Sub, par value $.001 per
share, outstanding immediately prior to the Effective Time shall be converted
into one share of common stock of the Surviving Corporation.
SECTION 1.3 SURRENDER AND PAYMENT.
1.3.1 Prior to the Effective Time, the Company shall appoint an agent
as exchange agent (the "EXCHANGE AGENT") in connection with the Merger for the
purpose of exchanging Common Certificates for certificates representing World
Gaming Ordinary Shares ("WORLD GAMING ORDINARY CERTIFICATES").
The Company shall deposit with the Exchange Agent, from time to time
that number of World Gaming Ordinary Certificates, in any denominations as the
Exchange Agent shall specify, as are issuable in respect of Company Common
Shares for which Common Certificates have been properly delivered to the
Exchange Agent. The Company shall also from time to time deposit or cause to be
deposited with the Exchange Agent U.S. dollars in an amount sufficient to
provide the Exchange Agent with the cash to fund payments to be made pursuant to
Section 1.3.6.
1.3.2 Promptly after the Effective Time, the Surviving Corporation
shall send, or shall cause the Exchange Agent to send, to each holder of record
as of the Effective Time of Company Common
2
Shares (other than holders of shares that constitute Excluded Shares) a letter
of transmittal (which shall also serve as a form of election) for use in
effecting delivery of Common Certificates to the Exchange Agent.
Each holder of Company Common Shares that have been converted in the
Merger into the right to receive the consideration set forth in Section 1.2.2
shall, upon surrender to the Exchange Agent of a Common Certificate or Common
Certificates, together with a properly completed letter of transmittal covering
the Company Common Shares represented by the Common Certificate or Common
Certificates, receive (i) the number of World Gaming Ordinary Shares into which
all of the Company Common Shares, represented by the holder's Common Certificate
or Common Certificates, are converted in accordance with Section 1.2.2, and, if
applicable, (ii) a check in an amount of U.S. dollars (after giving effect to
any required tax withholdings) equal to any cash dividends or other
distributions that the holder has the right to receive pursuant to
Section 1.3.6. Until so surrendered, each Common Certificate shall, after the
Effective Time, represent for all purposes only the right to receive one
(1) World Gaming Ordinary Share into which the Company Common Share represented
by that Common Certificate are converted in accordance with Section 1.2.2, the
applicable amounts provided in the foregoing clause (ii), and, if perfected,
Dissenters' Appraisal Rights.
1.3.3 If any World Gaming Ordinary Shares are to be issued or paid to a
person other than the registered holder of Company Common Shares represented by
a Common Certificate or Common Certificates surrendered with respect thereto, it
shall be a condition to this issuance or payment that the Common Certificate or
Common Certificates so surrendered shall be properly endorsed or otherwise be in
proper form for transfer and that the individual, corporation, general or
limited partnership, limited liability company, joint venture, estate, trust,
association or other entity ("PERSON") requesting this issuance or payment shall
pay to the Exchange Agent any transfer or other taxes required as a result of
this issuance or payment to a Person other than the registered holder of these
Company Common Shares or establish to the satisfaction of the Exchange Agent
that this tax has been paid or is not payable.
1.3.4 The stock transfer books of the Company shall be closed at the
close of trading on the Over-The-Counter Bulletin Board on the day prior to the
Effective Time, and thereafter there shall be no further registration of
transfers of Company Common Shares that were outstanding prior to the Effective
Time. After the Effective Time, Common Certificates presented to the Surviving
Corporation for transfer shall be canceled and exchanged for the consideration
provided for, and in accordance with the procedures set forth, in this
Article I, or Dissenters' Appraisal Rights if properly perfected under the DGCL.
1.3.5 Any World Gaming Ordinary Shares to be issued in respect of
Company Common Shares (and any cash dividend or other distribution that a former
holder of Company Common Shares has the right to receive pursuant to
Section 1.3.6) pursuant to this Article I, that remains unclaimed by any former
holder of Company Common Shares six (6) months after the Effective Time shall be
held by the Exchange Agent (or a successor agent appointed by World Gaming)
subject to the instruction of World Gaming in an account or accounts designated
for this purpose. World Gaming shall not be liable to any former holder of
Company Common Shares for any securities delivered or any amount paid by the
Exchange Agent or its nominee, as the case may be, to a public official pursuant
to applicable abandoned property laws. Any cash remaining unclaimed by holders
of Company Common Shares two (2) years after the Effective Time (or any earlier
date immediately prior to that time as this cash would otherwise escheat to or
become property of any governmental or regulatory authority, agency, court,
commission, body or other governmental entity (each a "GOVERNMENTAL ENTITY") or
as is otherwise provided by applicable law shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation or World
Gaming, as World Gaming may determine.
3
1.3.6 No dividends or other distributions with respect to World Gaming
Ordinary Shares issuable with respect to the Company Common Shares shall be paid
to the holder of any unsurrendered Common Certificates until those Common
Certificates are surrendered as provided in this Article I. Upon surrender,
there shall be issued and/or paid to the holder of the World Gaming Ordinary
Shares issued in exchange therefor, without interest, at the time of surrender,
the dividends or other distributions payable with respect to those World Gaming
Ordinary Shares and World Gaming Ordinary Shares with a record date after the
date of the Effective Time and a payment date on or prior to the date of this
surrender and not previously paid. For purposes of dividends or other
distributions in respect of World Gaming Ordinary Shares, all such shares to be
issued and delivered pursuant to the Merger shall be deemed issued and
outstanding as of the Effective Time.
SECTION 1.4 COMPANY STOCK OPTIONS.
1.4.1 At the Effective Time, all stock options granted to current or
former employees, directors, consultants and other persons to purchase Company
Common Shares (each, a "COMPANY STOCK OPTION") which are then outstanding and
unexercised shall cease to represent a right to acquire Company Common Shares
and shall be exchanged or converted into or canceled with the grant of new
rights over options to acquire World Gaming Ordinary Shares as the Boards of
Directors of the Company and World Gaming may determine to be appropriate based
on considerations as to favorable taxation treatment as provided below, and, if
appropriate, World Gaming shall assume each Company Stock Option subject to the
terms of any of the Company's stock option plans existing immediately prior to
the Effective Time ("COMPANY STOCK PLANS") and the agreements evidencing grants
thereunder or grant new options in World Gaming if the same would be more
appropriate or desirable. The Boards of Directors of the Company and World
Gaming shall take, or shall cause their committees to take, all action necessary
to effectuate the foregoing.
To the extent the Boards of Directors of the Company and World Gaming
shall determine to convert Company Common Options into options to acquire World
Gaming Ordinary Shares, from and after the Effective Time, (i) the number of
World Gaming Ordinary Shares purchasable upon exercise of each outstanding
Company Stock Option shall be equal to the number of Company Common Shares that
were purchasable under that Company Stock Option immediately prior to the
Effective Time, and (ii) the exercise price per World Gaming Ordinary Share
under each Company Stock Option shall be the equivalent of the exercise price
per Company Common Share of each Company Stock Option immediately prior to the
Effective Time.
1.4.2 Prior to the Effective Time, World Gaming shall maintain
sufficient authorized and unissued share capital to enable the allotment and
issue of in accordance with Section 1.4.1 the number of World Gaming Ordinary
Shares necessary to satisfy World Gaming's obligations under Section 1.4.1. No
later than the Effective Time, the Company shall file with the U.S. Securities
and Exchange Commission (the "SEC") a registration statement on an appropriate
form or a post-effective amendment to a previously filed registration statement
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with
respect to the World Gaming Ordinary Shares which are subject to the Company
Stock Options as provided in Section 1.4.1, and shall use reasonable best
efforts to maintain the current status of the prospectus contained therein, as
well as comply with any applicable state securities or "Blue Sky" laws, for so
long as those options remain outstanding.
SECTION 1.5 THE SURVIVING CORPORATION.
1.5.1 The certificate of incorporation of the Company in effect at the
Effective Time shall be the certificate of incorporation of the Surviving
Corporation until amended in accordance with applicable law.
1.5.2 The bylaws of the Company in effect at the Effective Time shall
be the bylaws of the Surviving Corporation until amended in accordance with
applicable law.
4
1.5.3 From and after the Effective Time, until successors are duly
elected or appointed and qualified in accordance with applicable law, (i) the
directors of the Company at the Effective Time shall be the directors of the
Surviving Corporation, and (ii) the officers of the Company at the Effective
Time shall be the officers of the Surviving Corporation.
SECTION 1.6 WORLD GAMING.
1.6.1 The memorandum of association of World Gaming in effect at the
Effective Time shall be in substantially the form attached hereto as Exhibit A,
until amended in accordance with applicable law following the Effective Time.
1.6.2 The articles of association of World Gaming in effect at the
Effective Time shall be in substantially the form attached hereto as Exhibit B,
until amended in accordance with applicable law following the Effective Time.
1.6.3 From and after the Effective Time, until successors are duly
elected or appointed and qualified in accordance with applicable law, (i) the
directors of World Gaming shall consist of Fred Hazell, Wolf Bergelt, Jason
Bolduc, Brownell Combs II, Nicholas Jackson, Clare Roberts and Matthew Stasior,
and (ii) the officers of the Company at the Effective Time shall be the officers
of World Gaming.
SECTION 1.7 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Common Certificate shall have been lost, stolen or destroyed, upon the holder's
compliance with the replacement requirements established by the Exchange Agent,
including, if necessary, the posting by the holder of a bond in customary amount
as indemnity against any claim that may be made against it with respect to the
Common Certificate, the Exchange Agent will issue and deliver in exchange for
the lost, stolen or destroyed Common Certificate the applicable number of World
Gaming Ordinary Shares, and any unpaid dividends or other distributions
deliverable pursuant to Section 1.3.6 in respect of Company Common Shares
represented by such Common Certificate pursuant to this Agreement.
SECTION 1.8 APPRAISAL RIGHTS. In accordance with Section 262 of the DGCL,
holders of Company Common Shares which are issued and outstanding immediately
prior to the Effective Time and which are held by a holder who has not voted
those shares in favor of the approval and adoption of this Agreement, who shall
have delivered a written demand for appraisal of those shares in accordance with
the DGCL, who, as of the Effective Time, shall not have effectively withdrawn or
lost this right to appraisal and shall have adhered to any other applicable
requirements of Section 262 of the DGCL (the "DISSENTING SHARES") shall be
entitled to those rights (but only those rights) as are granted by Section 262
of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment
for those Dissenting Shares pursuant to Section 262 of the DGCL shall receive
payment from the Surviving Corporation in accordance with the DGCL; PROVIDED,
HOWEVER, that (i) if any holder of Dissenting Shares shall have failed to
establish their entitlement to appraisal rights as provided in Section 262 of
the DGCL, (ii) if any holder of Dissenting Shares shall have effectively
withdrawn the holder's demand for appraisal of the holder's shares or lost the
holder's right to appraisal and payment for the holder's shares under
Section 262 of the DGCL or (iii) if neither any holder of Dissenting Shares nor
the Surviving Corporation shall have filed a petition demanding a determination
of the value of all Dissenting Shares within the time provided in Section 262 of
the DGCL, the holder shall forfeit the right to appraisal of those Dissenting
Shares and each Dissenting Share shall be exchanged pursuant to Section 1.2.2 of
this Agreement. The Company shall give World Gaming prompt notice of any demands
received by the Company for appraisal of Company Common Shares and World Gaming
shall have the right to conduct all negotiations and proceedings with respect to
those demands. Any and all amounts paid by the Company to holders of Dissenting
Shares shall be paid solely by the Company out of cash on hand or out of
borrowings.
5
SECTION 1.9 COMPANY ESCROW ACCOUNT. No later than two (2) business days
before the day upon which the Effective Time shall occur, the Company shall
establish an escrow account with the Exchange Agent consisting of an adequate
amount of cash from the Company's working capital to fund the Company's
obligations under (i) Section 1.2.3 with respect to stamp duties, stamp duty
reserve taxes and other similar taxes and similar levies and (ii) Section 1.8
with respect to Dissenting Shares.
ARTICLE II
CONDITIONS; TERMINATION; AMENDMENT; GOVERNING LAW
SECTION 2.1 CONDITIONS. The respective obligations of each party to effect
the Merger is subject to the satisfaction or waiver of the following conditions:
(a) EFFECTIVENESS OF FORM F-4. A Form F-4, filed pursuant to the Securities
Act with respect to the World Gaming Ordinary Shares, shall have become
effective and no stop order suspending the effectiveness of the Form F-4 shall
then be in effect, and no proceeding for that purpose shall then be threatened
by the SEC or shall have been initiated by the SEC and not concluded or
withdrawn and all state securities or "blue sky" permits or approvals required
to consummate the Merger shall have been received.
(b) SHAREHOLDER APPROVAL. The affirmative vote of the holders of a majority
of the outstanding Company Common Shares shall have been obtained.
(c) THIRD PARTY CONSENTS. All requisite third party and regulatory consents
shall have been obtained, if any.
SECTION 2.2 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval by the
shareholders of the Company of matters presented in connection with the Merger,
for any reason, by action of the Board of Directors of the Company. In the event
of termination of this Agreement, this Agreement shall forthwith become void and
have no effect, without any liability or obligation on the part of any party
hereto.
SECTION 2.3 AMENDMENT. This Agreement may be amended by the parties at any
time before or after any required approval of matters presented in connection
with the Merger by the shareholders of the Company, PROVIDED, HOWEVER, that
after any such approval, there shall be made no amendment that by law requires
further approval by such shareholders without the further approval of such
shareholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
SECTION 2.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
[Signatures on following page]
6
IN WITNESS WHEREOF, this Agreement and Plan of Reorganization has been duly
executed and delivered by the duly authorized officers of the Company, World
Gaming, Limited and Reorg Sub as of the date first written above.
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
By: -----------------------------------------
Name: -----------------------------------------
Title: -----------------------------------------
WORLD GAMING PLC
By: -----------------------------------------
Name: -----------------------------------------
Title: -----------------------------------------
WG INTERNATIONAL LIMITED
By: -----------------------------------------
Name: -----------------------------------------
Title: -----------------------------------------
WG REORGANIZATION SUB, INC.
By: -----------------------------------------
Name: -----------------------------------------
Title: -----------------------------------------
7
EXHIBIT A
FORM OF MEMORANDUM OF ASSOCIATION
OF
WORLD GAMING PLC
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION OF
WORLD GAMING PLC
1. The Company's name is WORLD GAMING PLC.
2. The Company is to be a public company.
3. The Company's registered office is to be situated in England
and Wales.
4. The Company's objects are:-
(a) To carry on the business of a holding company in all its
branches and for that purpose in particular to acquire by
purchase lease concession grant licence or otherwise deal in
such businesses options rights privileges lands buildings
leases underleases stocks shares debenture bonds obligations
securities reversionary interests annuities policies of
assurance and other property and rights and interests in
property as the Company shall deem fit and generally to hold
manage develop lease sell or dispose of the same and to vary
any of the investments of the Company and to enter into
assist or participate in financial commercial mercantile
industrial and other transactions undertakings and business
of every description; to carry on all or any of the
businesses of financiers financial agents insurance brokers
and agents company promoters mortgage brokers commission and
general agents general merchants; to co-ordinate the policy
and administration of any subsidiary companies or any
companies of which this Company is a Member or which are in
any manner controlled by this Company; to carry on any other
trade or business whether subsidiary or not which can in the
opinion of the Company be carried on advantageously in
connection with any of the trades or businesses aforesaid or
which in the opinion of the Company will enhance the value
of any of the Company's property.
(b) To purchase or by any other means acquire any freehold,
leasehold or other property for any estate or interest
whatever and any rights or privileges of any kind over or in
respect of any property and any real or personal property or
rights whatsoever which may be necessary for, or may be
conveniently used with, or may enhance the value of any
other property of the Company.
(c) To purchase, or by other means acquire and protect, prolong
and renew, whether in the United Kingdom or elsewhere any
patents, patent rights, brevets d'invention, licences,
copyrights, secret processes, trade marks, designs,
protections and concessions which may appear likely to be
advantageous or useful to the Company in pursuit of any
trade or business carried on by the Company and to use and
turn to account and to manufacture under or grant licences
or privileges in respect of the same, and to expend money in
experimenting upon, testing and improving any patents,
inventions or rights which the Company may acquire or
propose to acquire.
(d) To acquire or undertake the whole or any part of the
business, goodwill, and assets of any person, firm, or
company carrying on or proposing to carry on any of the
businesses which the Company chooses to carry on and as part
of the consideration for such acquisition to undertake all
or any of the liabilities of such person, firm or company,
or to acquire an interest in amalgamate with, or enter into
partnership or into any arrangement for sharing profits, or
for co-operation, or for limiting competition, or for mutual
assistance with any such person, firm or company, and to
give or accept, by way of consideration for any of the acts
or things aforesaid or property acquired, any shares,
debentures, debenture stock or securities that may be agreed
upon, and to hold and retain, or sell, mortgage and deal
with any shares, debentures, debenture stock or securities
so received.
(e) To improve, manage, cultivate, construct, repair, develop,
exchange, let on lease or otherwise, mortgage, charge, sell,
dispose of, turn to account, grant rights and privileges in
respect of, or otherwise deal with all or any part of the
property and rights of the Company.
(f) To invest and deal with the moneys of the Company not
immediately required upon such securities and in such manner
as may from time to time be determined.
(g) To lend or advance money or give credit to any persons,
firms or companies or others having dealings with the
Company upon such terms and with or without security and
subject to such conditions as may seem desirable and to give
guarantees or become security for any such persons, firms,
companies or others.
(h) To guarantee support or to secure whether by personal
obligation or covenant or by mortgaging or charging all or
any part of the undertaking property and assets (present and
future) and uncalled capital of the Company or by any one or
more or all of such methods or by any other method the
performance of any obligations or commitments of, and the
repayment or payment of the principal amounts of, and
premiums, interest, dividends, and other moneys payable on
or in respect of, any debentures, debenture stock, loan
stock, shares or other securities, liabilities or
obligations of any person firm or company, including
(without prejudice to the generality of the foregoing) any
company which is for the time being a subsidiary or a
holding company, as defined in section 736 of the Companies
Act 1985, (as re-enacted by the Companies Act 1989 or any
subsequent re-enactment or amendment thereof) or a
subsidiary undertaking (as defined by Section 258 of the
Companies Act 1985 or any re-enactment or amendment thereof)
of the Company, or another subsidiary of such holding
company or otherwise associated with the Company in business
or through shareholdings.
(i) To borrow and raise money in any manner and to secure the
repayment of money borrowed, raised or owing by mortgage,
charge, standard security, lien or other security upon the
whole or any part of the Company's property or assets
(whether present or future), including its uncalled capital,
and also by a similar mortgage, charge, standard security,
lien or security to secure and guarantee the performance by
the Company of any obligation or liability it may undertake
or which may become binding on it.
(j) To draw, make, accept, endorse, discount, execute and issue
cheques, bills of exchange, promissory notes, bills of
lading, warrants, debentures, and other negotiable
instruments that may be incidental or conducive to the
Company's commercial activity.
(k) To enter into any arrangements with any government or
authority (supreme, municipal, local, or otherwise) or any
corporations, companies or persons, that may seem conducive
to the attainment of the Company's object and to obtain from
any such government or authority, corporation, company or
person, any charters, contracts, decrees, rights, privileges
or concessions which the Company may think desirable and to
carry out, exercise and comply with any such charters,
contracts, decrees, rights, privileges and concessions.
(l) To subscribe for, take, purchase, or otherwise acquire and
hold shares, stock or other interests in or obligations of
any other company or corporation.
(m) To promote any other company for the purpose of acquiring
all or any of the property or undertaking or any of the
liabilities of the Company, or of undertaking any business
or operations which may appear likely to assist or benefit
the Company or to enhance the value of any property or
business of the Company, and to place or guarantee the
placing of, underwrite, subscribe for, or otherwise acquire
all or any part of the shares or securities of any such
company as aforesaid.
(n) To sell, let, licence, develop or otherwise deal with the
whole or any part of the undertaking of the Company, either
together or in portions upon such terms, as the Company may
think fit, with power to accept shares, debentures, or
securities of any company purchasing the same.
(o) To undertake and perform sub-contracts and also to act in
any of the businesses of the Company through or by means of
agents, brokers, sub-contractors or others.
(p) To remunerate any person, firm or company rendering services
to the Company either by cash payment or by the allotment
subject to the provisions of the Companies Act 1985 (or any
statutory modification or re-enactment thereof) to him or
them of shares or other securities of the Company credited
as paid up in full or in part or otherwise.
(q) To pay out of the funds of the Company all costs and
expenses of or incidental to the promotion formation and
incorporation of the Company, or to contract with any
person, firm or company to pay the same, and to pay
commissions to brokers and others for underwriting, placing,
selling or guaranteeing the subscription of any shares or
other securities of the Company.
(r) To purchase and maintain insurance policies to indemnify the
officers and auditor of the Company against any costs,
expenses and liabilities arising from negligence, default,
breach of duty or trust incurred by them in discharge of
their duties or in relation thereto pursuant to the
provisions contained in section 310(3) of the Companies Act
1985.
(s) To support and subscribe to any charitable or public object
and to support and subscribe to any institution, society, or
club which may be for the benefit of the Company or its
Directors or employees; to remunerate the Directors of the
Company in any manner the Company may think fit and to pay
or provide pensions for or make payments to or for the
benefit of any persons who are or were at any time in the
employment or service of the Company or of any company for
the time being the Company's holding company or subsidiary
company as defined by Section 736 of the Companies Act 1985
or otherwise associated with the Company in business and the
wives, widows, families and dependants of any such persons;
to make payments towards life insurance; to set up,
establish support and maintain superannuation and other
funds or schemes (whether contributory or non-contributory)
for the benefit of any of such persons as aforesaid and of
their wives, widows, families and dependants, and to set up,
establish, support and maintain profit sharing, share option
or share purchase schemes for the benefit of any of the
employees of the Company or of any such subsidiary or
holding company and to lend money to any such employees or
to trustees on their behalf to enable any such schemes to be
established or maintained.
(t) To distribute any property of the Company in specie among
the members.
(u) To do all such other things as may be deemed incidental or
conducive to the attainment of the Company's objects or any
of them.
AND it is hereby declared that
(i) None of the objects set forth in any sub-clause of this
clause shall be restrictively construed but the widest
interpretation shall be given to each such object, and the
foregoing sub-clauses shall be construed independently of
each other, except where the context expressly so requires
and none of the objects therein mentioned shall be deemed to
be merely subsidiary or ancillary to the objects contained
in any other sub-clause; and
(ii) Without prejudice to the generality of sub-clause (u), such
matters as are hereinbefore set out in sub-clauses (b) to
(t) are deemed to be incidental or conducive to the
Company's object; and
(ii) The word 'Company' in this clause shall, except where used
in reference to this Company, be deemed to include any
partnership or other body of persons whether corporate or
unincorporate and whether domiciled in any part of the
United Kingdom or elsewhere.
5. The liability of the members is limited.
6. The Company's share capital is L1,000,000 divided into
100,000,000 shares of L0.01 each.
We, the subscribers to this Memorandum of Association, wish to be formed into a
Company pursuant to this Memorandum; and we agree to take the number of shares
shown opposite our respective names.
- --------------------------------------------------------------------------------
Names and addresses of subscribers and number of shares taken by each subscriber
- --------------------------------------------------------------------------------
York Place Company Nominees Limited One
12 York Place
Leeds LS1 2DS
York Place Company Secretaries Limited One
12 York Place
Leeds LS1 2DS
- --------------------------------------------------------------------------------
Dated 17 October 2000
Witness to the above signatures:
Emma Hogarth
12 York Place
Leeds LS1 2DS
EXHIBIT B
FORM OF ARTICLES OF ASSOCIATION
OF
WORLD GAMING PLC
THE COMPANIES ACTS 1985 AND 1989
---------------------------------------------------------
PUBLIC COMPANY LIMITED BY SHARES
---------------------------------------------------------
ARTICLES OF ASSOCIATION
of
WORLD GAMING PLC
(adopted by special resolution on 18 October 2000)
---------------------------------------------------------
ORCHARD
99 Bishopsgate
London
EC2M 3YU
Tel - 020 7392 0200
Fax - 020 7392 0201
email - info@orchardlaw.com
Ref: CB S155.1 280900 D20(2)
CONTENTS
CLAUSE SUBJECT MATTER PAGE
PRELIMINARY................................................. 1
1 OTHER REGULATIONS EXCLUDED.................................. 1
2 INTERPRETATION.............................................. 1
SHARE CAPITAL............................................... 4
3 AUTHORISED SHARE CAPITAL.................................... 4
4 POWER TO ATTACH CLASS RIGHTS................................ 5
5 AUTHORITY OF BOARD TO ALLOT SHARES.......................... 5
6 COMMISSIONS................................................. 5
7 TRUSTS NOT RECOGNISED....................................... 6
8 REDEEMABLE SHARES........................................... 6
9 PURCHASE OF OWN SHARES...................................... 6
10 VARIATION OF CLASS RIGHTS................................... 6
11 CLASS MEETINGS.............................................. 6
UNCERTIFICATED SHARES....................................... 7
12 UNCERTIFICATED SHARES....................................... 7
13 COMPANY'S RIGHTS IN RESPECT OF UNCERTIFICATED SHARES........ 7
SHARE CERTIFICATES.......................................... 8
14 RIGHT TO SHARE CERTIFICATE.................................. 8
15 REPLACEMENT CERTIFICATES.................................... 8
CALLS ON SHARES............................................. 9
16 CALLS....................................................... 9
17 INTEREST ON UNPAID CALLS.................................... 9
18 AMOUNTS DUE ON ALLOTMENT TREATED AS CALLS................... 10
19 POWER TO DIFFERENTIATE...................................... 10
20 PAYMENT IN ADVANCE.......................................... 10
FORFEITURE.................................................. 10
21 NOTICE IF CALL NOT PAID..................................... 10
22 SHARES LIABLE TO BE FORFEITED............................... 10
23 FORFEITURE.................................................. 10
24 NOTICE AFTER FORFEITURE..................................... 11
CLAUSE SUBJECT MATTER PAGE
25 DISPOSAL OF FORFEITED SHARE................................. 11
26 ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE............... 11
27 EVIDENCE OF FORFEITURE...................................... 11
28 SURRENDER................................................... 12
LIEN........................................................ 12
29 LIEN ON SHARES NOT FULLY PAID............................... 12
30 ENFORCEMENT OF LIEN BY SALE................................. 12
31 APPLICATION OF PROCEEDS OF SALE............................. 12
TRANSFER OF SHARES.......................................... 13
32 FORM OF TRANSFER............................................ 13
33 RIGHT TO REFUSE REGISTRATION................................ 13
34 NOTICE OF REFUSAL TO REGISTER............................... 13
35 FEES ON REGISTRATION........................................ 14
36 SUSPENSION OF REGISTRATION AND CLOSING OF REGISTER.......... 14
37 RETENTION OF INSTRUMENTS OF TRANSFER........................ 14
38 DESTRUCTION OF DOCUMENTS.................................... 14
TRANSMISSION OF SHARES...................................... 15
39 ON DEATH.................................................... 15
40 ELECTION OF PERSON ENTITLED BY TRANSMISSION................. 15
41 RIGHTS ON TRANSMISSION...................................... 15
DISCLOSURE OF INTERESTS IN SHARES........................... 16
42 SANCTIONS FOR FAILURE TO DISCLOSE INTEREST IN SHARES........ 16
43 REMOVAL OF SANCTIONS AND CONVERSION OF UNCERTIFICATED
SHARES...................................................... 16
44 NOTICE TO PERSON OTHER THAN A MEMBER........................ 17
45 INTEREST IN SHARES, FAILURE TO GIVE INFORMATION AND EXCEPTED
TRANSFERS................................................... 17
ALTERATIONS TO CAPITAL...................................... 17
46 INCREASE, CONSOLIDATION, SUB-DIVISION AND CANCELLATION...... 17
47 REDUCTION OF CAPITAL........................................ 18
48 FRACTIONS................................................... 18
GENERAL MEETINGS............................................ 19
49 ANNUAL GENERAL MEETING...................................... 19
CLAUSE SUBJECT MATTER PAGE
50 EXTRAORDINARY GENERAL MEETING............................... 19
51 CONVENING OF EXTRAORDINARY GENERAL MEETINGS................. 19
52 LENGTH AND FORM OF NOTICE................................... 19
53 MEETING CALLED ON SHORT NOTICE.............................. 20
54 OMISSION TO SEND NOTICE..................................... 20
55 SPECIAL BUSINESS............................................ 20
PROCEEDINGS AT GENERAL MEETINGS............................. 20
56 QUORUM...................................................... 20
57 CHAIRMAN.................................................... 20
58 QUORUM NOT PRESENT.......................................... 21
59 ADJOURNED MEETING........................................... 21
60 ACCOMMODATION OF MEMBERS AT MEETING......................... 21
61 SECURITY.................................................... 22
62 ORDER OF MEETING............................................ 22
63 AMENDMENT OF RESOLUTIONS.................................... 22
64 MEMBERS' RESOLUTION IN WRITING.............................. 22
VOTING...................................................... 22
65 METHOD OF VOTING............................................ 22
66 PROCEDURE ON A POLL......................................... 23
67 CASTING VOTE................................................ 24
68 OBJECTION TO AND ERROR IN VOTING............................ 24
69 VOTES OF MEMBERS............................................ 24
70 RESTRICTION ON VOTING RIGHTS................................ 24
71 VOTING BY PROXY............................................. 25
72 APPOINTMENT OF MORE THAN ONE PROXY.......................... 25
73 EXECUTION OF PROXY.......................................... 25
74 PROXY VALID THOUGH AUTHORITY REVOKED........................ 25
75 PROXY CAN DEMAND A POLL..................................... 25
76 DEPOSIT OF PROXY............................................ 26
77 SENDING INSTRUMENT OF PROXY................................. 26
78 COMPANY ACTING BY AUTHORISED REPRESENTATIVE................. 26
CLAUSE SUBJECT MATTER PAGE
APPOINTMENT OF DIRECTORS.................................... 27
79 POWER OF COMPANY TO APPOINT DIRECTORS....................... 27
80 NUMBER OF DIRECTORS......................................... 27
81 POWER OF THE BOARD TO APPOINT DIRECTORS..................... 27
82 NO SHARE QUALIFICATION...................................... 27
EXECUTIVE DIRECTORS......................................... 27
83 APPOINTMENT OF EXECUTIVE DIRECTORS.......................... 27
84 TERMINATION OF EXECUTIVE OFFICE............................. 27
85 POWERS OF EXECUTIVE DIRECTOR................................ 27
ROTATION, RETIREMENT AND REMOVAL OF DIRECTORS............... 28
86 VACATION OF OFFICE BY DIRECTOR.............................. 28
87 NO RETIREMENT ON ACCOUNT OF AGE............................. 28
88 RETIREMENT BY ROTATION...................................... 28
89 DIRECTORS SUBJECT TO RETIREMENT............................. 29
90 POSITION OF RETIRING DIRECTOR............................... 29
91 DEEMED REAPPOINTMENT........................................ 29
92 ELIGIBILITY OF NEW DIRECTORS................................ 29
93 VOTING ON RESOLUTION FOR APPOINTMENT........................ 29
94 REMOVAL BY ORDINARY RESOLUTION.............................. 30
DIRECTORS' REMUNERATION, EXPENSES AND BENEFITS.............. 30
95 DIRECTORS' FEES............................................. 30
96 EXPENSES.................................................... 30
97 REMUNERATION OF EXECUTIVE DIRECTORS......................... 30
98 ADDITIONAL REMUNERATION..................................... 31
99 DIRECTORS' PENSIONS AND OTHER BENEFITS...................... 31
INTERESTS OF DIRECTORS...................................... 31
100 PERMITTED INTERESTS......................................... 31
101 DECLARATION OF DIRECTOR'S INTEREST.......................... 32
102 LIMITATIONS ON VOTING OF INTERESTED DIRECTOR................ 32
103 RESTRICTIONS ON VOTING...................................... 33
104 MATERIALITY OF DIRECTOR'S INTEREST.......................... 34
CLAUSE SUBJECT MATTER PAGE
105 DIRECTOR'S INTEREST EXTENDS TO CONNECTED PERSONS............ 34
POWERS AND DUTIES OF DIRECTORS.............................. 34
106 POWERS OF THE BOARD......................................... 34
107 DELEGATION TO COMMITTEES.................................... 34
108 LOCAL MANAGEMENT............................................ 35
109 POWER OF ATTORNEY........................................... 35
110 EXERCISE OF VOTING POWERS................................... 35
BORROWING POWERS............................................ 35
111 BORROWING POWERS............................................ 35
PROCEEDINGS OF THE BOARD.................................... 36
112 BOARD MEETINGS.............................................. 36
113 QUORUM...................................................... 36
114 NOTICE OF BOARD MEETINGS.................................... 36
115 VOTING...................................................... 36
116 CHAIRMAN OF THE BOARD....................................... 36
117 PROCEEDINGS OF A COMMITTEE.................................. 37
118 VALIDITY OF PROCEEDINGS OF BOARD OR COMMITTEE............... 37
119 MINUTES OF PROCEEDINGS...................................... 37
120 PARTICIPATION BY TELEPHONE.................................. 37
121 BOARD RESOLUTION IN WRITING................................. 38
122 NUMBER OF DIRECTORS LESS THAN MINIMUM....................... 38
ALTERNATE DIRECTORS......................................... 38
123 APPOINTMENT................................................. 38
124 PARTICIPATION IN BOARD MEETINGS............................. 38
125 REMUNERATION AND EXPENSES................................... 39
126 REVOCATION OF APPOINTMENT................................... 39
127 RESPONSIBILITY.............................................. 39
ASSOCIATE DIRECTORS......................................... 39
128 APPOINTMENT OF ASSOCIATE DIRECTOR........................... 39
129 EFFECT OF APPOINTMENT....................................... 39
130 POWERS, DUTIES AND REMUNERATION............................. 40
CLAUSE SUBJECT MATTER PAGE
SEALS....................................................... 40
131 APPLICATION OF SEALS........................................ 40
132 SIGNING OF SEALED DOCUMENTS................................. 40
133 SEAL FOR USE ABROAD......................................... 40
SECRETARY................................................... 40
134 APPOINTMENT AND REMOVAL OF SECRETARY........................ 40
135 AUTHORITY OF OTHER PERSON TO ACT AS SECRETARY............... 40
136 AUTHENTIFICATION OF DOCUMENTS............................... 41
REGISTERS................................................... 41
137 REGISTER OF DIRECTORS' INTERESTS............................ 41
138 OTHER REGISTERS............................................. 41
DIVIDENDS................................................... 41
139 RECORD DATES................................................ 41
140 ENTITLEMENT TO DIVIDENDS.................................... 41
141 DECLARATION OF DIVIDENDS.................................... 42
142 INTERIM DIVIDENDS........................................... 42
143 PAYMENT OF DIVIDENDS IN KIND................................ 42
144 METHOD OF PAYMENT........................................... 42
145 CESSATION OF PAYMENT OF DIVIDEND............................ 43
146 DIVIDENDS DO NOT BEAR INTEREST.............................. 44
147 DEDUCTION FROM DIVIDEND..................................... 44
148 UNCLAIMED DIVIDENDS......................................... 44
149 DIVIDEND MAY BE WITHHELD.................................... 44
150 PAYMENT OF SCRIP DIVIDENDS.................................. 44
RESERVES.................................................... 45
151 PROVISION OF RESERVES....................................... 45
152 CAPITALISATION OF PROFITS AND RESERVES...................... 46
ACCOUNTS.................................................... 47
153 INSPECTION OF ACCOUNTS...................................... 47
154 PREPARATION OF ACCOUNTS..................................... 47
155 ACCOUNTS SENT TO THE MEMBERS................................ 47
CLAUSE SUBJECT MATTER PAGE
UNTRACED SHAREHOLDERS....................................... 48
156 POWER OF SALE............................................... 48
157 APPLICATION OF PROCEEDS OF SALE............................. 49
NOTICES..................................................... 49
158 NOTICES IN WRITING.......................................... 49
159 SERVICE OF NOTICES.......................................... 49
160 NOTICE TO JOINT HOLDERS..................................... 49
161 ADDRESS OUTSIDE THE UNITED KINGDOM.......................... 49
162 DEEMED NOTICE............................................... 50
163 EVIDENCE OF SERVICE......................................... 50
164 NOTICE BINDING ON TRANSFEREES ETC........................... 50
165 NOTICE IN CASE OF ENTITLEMENT BY TRANSMISSION............... 50
166 NOTICE BY ADVERTISEMENT..................................... 50
WINDING UP AND INDEMNITY.................................... 51
167 WINDING UP.................................................. 51
168 INDEMNITY................................................... 51
THE COMPANIES ACTS 1985 AND 1989
----------------------------------------------------
PUBLIC COMPANY LIMITED BY SHARES
----------------------------------------------------
ARTICLES OF ASSOCIATION
OF
WORLD GAMING PLC
(adopted by special resolution passed on 18 October 2000)
PRELIMINARY
1 OTHER REGULATIONS EXCLUDED
The following regulations shall be the articles of
association of the Company to the exclusion of any
regulation or article prescribed by or pursuant to any
statute concerning companies.
2 INTERPRETATION
2.1 In these Articles the following definitions apply:
"THE ACT" the Companies Act 1985 as amended, consolidated or
re-enacted from time to time;
"ARTICLES" these articles of association as amended from time to time;
"AUDITORS" the auditors of the Company from time to time;
"BOARD" the board of Directors or the Directors present at a duly
convened and quorate meeting of Directors or a duly
authorised committee of the Directors as the context
requires;
"BUSINESS DAY" a day (other than a Saturday or a Sunday) on which banks are
open for business in London;
"CASH MEMORANDUM ACCOUNT" an account so designated by the operator of the relevant
system concerned;
"CERTIFICATED SHARE" a share in the capital of the Company that is not an
uncertificated share and references to a share being held in
certificated form shall be construed accordingly;
"CLEAR DAYS" in relation to a period of notice, that period excluding the
day when the notice is given or deemed to be given and the
day for which it is given or on which it is to take effect;
"COMPANY" World Gaming plc;
"DEBENTURE" includes debenture stock;
1
"DIRECTOR" a director of the Company from time to time;
"ENTITLED BY TRANSMISSION" in relation to a share, entitled as a consequence of the
death or bankruptcy of a Member or of another event giving
rise to a transmission of entitlement by operation of law;
"GROUP" the Company and any company which is a Subsidiary
Undertaking of the Company from time to time;
"HOLDER" in relation to a share, the Member whose name is entered in
the Register as the holder of that share;
"LONDON STOCK EXCHANGE" London Stock Exchange plc;
"MEMBER" a member of the Company;
"MONTH" calendar month;
"OFFICE" the registered office of the Company from time to time;
"ORDINARY SHARES" ordinary shares of L0.01 each in the capital of the Company;
"PAID UP" paid up or credited as paid up;
"PERSON WITH MENTAL DISORDER" a person who is, or may be, suffering from mental disorder
and either:
he is admitted to hospital in pursuance of an application
for admission for treatment under the Mental Health Act 1983
or, in Scotland, an application for admission under the
Mental Health (Scotland) Act 1984; or
an order is made by a court having jurisdiction (whether in
the United Kingdom or elsewhere) in matters concerning
mental disorder for his detention or for the appointment of
a guardian, receiver, curator bonis or other person to
exercise powers with respect to his property or affairs;
"PRESCRIBED RATE" an annual rate of interest equal to 2 per cent above the
base lending rate (or any equivalent or successor lending
rate) published from time to time by National Westminster
Bank PLC in London being the base lending rate prevailing at
the close of business in London on the day immediately
preceding the day on which such rate falls to be determined;
"RECOGNISED PERSON" a recognised clearing house or a nominee of a recognised
clearing house or of a recognised investment exchange which
is designated for the purposes of section 185(4) of the Act;
"REGISTER" the register of Members;
"SEAL" the common seal of the Company and, as appropriate, any
official or securities seal that the Company has or may be
permitted to have under the Statutes;
"SECRETARY" the secretary of the Company or any other person appointed
to perform the duties of the secretary of the Company,
including a joint assistant or deputy secretary;
2
"STATUTES" the Act and the Companies Act 1989 and the Uncertificated
Securities Regulations and every other statute or statutory
instrument, rule, order or regulation from time to time in
force concerning companies so far as they apply to the
Company;
"STERLING" the lawful currency of the United Kingdom;
"SUBSIDIARY UNDERTAKING" a subsidiary undertaking of the Company which is required by
the Statutes to be included in consolidated group accounts
of the Company;
"UNCERTIFICATED SECURITIES the Uncertificated Securities Regulations 1995 (SI1995 No
REGULATIONS" 3272) including any modification of them or any regulations
in substitution of them from time to time in force;
"UNCERTIFICATED SHARE" a share in the capital of the Company which is recorded on
the register as being held in uncertificated form and title
to which may, by virtue of the Uncertificated Securities
Regulations, be transferred by means of a relevant system
and references to a share being held in uncertificated form
are references to that share being an uncertificated unit of
a security and shall be construed accordingly;
"UNITED KINGDOM" Great Britain and Northern Ireland.
2.2 In these Articles, unless the context otherwise requires:
2.2.1 references to persons include references to natural persons
corporations unincorporated associations and partnerships
and any reference to any party who is an individual is also
deemed to include their legal personal representative;
2.2.2 words and expressions defined in the Statutes shall bear the
same meaning in these Articles (but excluding any
modification of the Statutes not in force at the date of
these Articles and words and expressions expressly defined
in these Articles) unless inconsistent with the subject or
context;
2.2.3 words and expressions defined in the Uncertificated
Securities Regulations shall bear the same meaning in these
Articles (but excluding any modification of the
Uncertificated Securities Regulations not in force at the
date of adoption of these Articles and words and expressions
expressly defined in these Articles) unless inconsistent
with the subject or context;
2.2.4 where these Articles refer to a relevant system in relation
to a share, the reference is to the relevant system in which
that share is a participating security at the relevant time.
2.3 In these Articles:
2.3.1 the headings are included for convenience only and do not
affect the construction of these Articles.
2.3.2 words denoting the singular include the plural and vice
versa; and
2.3.3 words denoting one gender include each gender and all other
genders.
2.4 Where an ordinary resolution of the Company is expressed to
be required for any purpose, a special or extraordinary
resolution is also effective for that purpose and, where an
extraordinary resolution is expressed to be required for any
purpose, a special resolution is also effective for that
purpose.
3
SHARE CAPITAL
3 AUTHORISED SHARE CAPITAL
The authorised share capital of the Company is L1,000,000
divided into 100,000,000 Ordinary Shares of L0.01 each.
4 POWER TO ATTACH CLASS RIGHTS
Subject to the Statutes and without prejudice to any special
rights attached to any class of shares, any share in the
Company (whether forming part of the present capital or not)
may be issued with or have attached to them such special
rights, conditions or restrictions as the Company may by
ordinary resolution direct or failing such direction (but in
the case of unclassified shares only) as the Board may
determine. Where the equity share capital of the Company
includes shares with different voting rights, the
designation of each class of shares other than those with
the most favourable voting rights will include the words
"restricted voting" or "limited voting" or "non voting".
5 AUTHORITY OF BOARD TO ALLOT SHARES
5.1 For the purpose of section 80 of the Act, the Board is
generally and unconditionally authorised to exercise all
powers of the Company to allot relevant securities as
defined in the said section up to an aggregate nominal
amount of L1,000,000. This authority shall expire five years
from the date of incorporation of the Company but may be
previously revoked or varied by the Company in general
meeting and may from time to time be renewed by the Company
in general meeting for a further period not exceeding five
years. The Company may make any offer or agreement before
the expiry of this authority that would or might require
relevant securities to be allotted after this authority has
expired and the Board may allot relevant securities in
pursuance of any such offer or agreement as if this
authority had not expired.
5.2 The Board may allot equity securities for cash within the
meaning of section 94 of the Act pursuant to the authority
conferred by paragraph 5.1 of these Articles as if
s.89(1) of the Act did not apply to any such allotment,
provided that this authority shall:
5.2.1 only apply in relation to that number of equity securities
as shall not exceed an aggregate nominal amount of L50,000;
and
5.2.2 expire on the fifth anniversary of the date of adoption of
these Articles save that the Company may before such expiry
date make any offer or agreement which would or might
require equity securities to be allotted after the relevant
expiry date and accordingly the Board may allot equity
securities pursuant to any such offer or agreement as if
such authority had not expired.
6 COMMISSIONS
The Company may exercise all powers of paying commission and
brokerage conferred or permitted by the Statutes. Subject to
the Statutes and the rules of the London Stock Exchange, any
such commission or brokerage may be satisfied in cash or by
the allotment of fully or partly paid shares in the Company
or the grant of an option to call for an allotment of shares
or any combination of such methods as the Board may
determine.
7 TRUSTS NOT RECOGNISED
Save as provided by these Articles or as ordered by a court
of competent jurisdiction or otherwise required by law, no
person shall be recognised (even when notice is given) by
the Company as holding any share upon any trust and the
Company shall not be bound by or required to recognise
4
any equitable, contingent, future or partial interest in any
share or any right whatsoever in respect of any share, other
than an absolute right to the whole of the share in the
registered holder.
8 REDEEMABLE SHARES
Subject to the Statutes, the Company may issue shares which
are to be redeemed or are liable to be redeemed at the
option of the Company or of the Member.
9 PURCHASE OF OWN SHARES
Subject to the Statutes, the Company may purchase its own
shares (including any redeemable shares) or enter into such
agreement (contingent or otherwise) in relation to the
purchase of its own shares on such terms and in such manner
as may be permitted by the Statutes.
10 VARIATION OF CLASS RIGHTS
Subject to the Statutes, the rights attached to any class of
shares may be modified, varied or abrogated (a) in such
manner (if any) as may be provided by those rights or
(b) in the absence of provision, either with the consent in
writing of the holders of at least three fourths in nominal
value of the issued shares of the class or with the sanction
of an extraordinary resolution passed at a separate meeting
of the holders of that class and then only subject to the
provisions of section 127 of the Act. The rights attached to
any class of share are not, unless otherwise expressly
provided by these Articles or in the rights attaching to the
shares of that class, deemed to be modified, varied or
abrogated by the creation or issue of further shares ranking
equally with every other share of that class or subsequent
to them or by the purchase or redemption by the Company of
its own shares in accordance with the Statutes and these
Articles.
11 CLASS MEETINGS
A separate meeting for the holders of a class of shares
shall be convened and conducted as nearly as possible in the
same way as an extraordinary general meeting except that the
necessary quorum (other than at an adjourned meeting) is 2
persons, present in person or by proxy, holding or
representing by proxy at least one third in nominal value of
the capital paid up on the issued shares of the class and,
at an adjourned meeting, one person holding shares of the
class in question present in person or by proxy and any
holder of shares of the class in question present in person
or by proxy and entitled to vote at the meeting may demand a
poll and shall be entitled on a poll to one vote for every
share of that class of which he is the holder. No Member,
other than a Director, is entitled to notice of a separate
class meeting or to attend unless he is a holder of shares
of that class and no vote may be given except in respect of
a share of that class.
UNCERTIFICATED SHARES
12 UNCERTIFICATED SHARES
12.1 Subject to the provisions of the Uncertificated Securities
Regulations, the Company may issue shares which may be held
evidenced and transferred through a relevant system in
uncertificated form, and where any share is held in
uncertificated form the Company shall not issue and no
person shall be entitled to receive a certificate in respect
of such share at any time and for so long as the title to
the share is evidenced otherwise than by a certificate and
transfers may be made otherwise than by a written instrument
by virtue of the Articles. Title to shares in issue at the
date of adoption of these Articles may be transferred and
evidenced by a relevant system. The Board shall have the
power to implement any arrangements as they may, in their
absolute discretion, think fit in relation to the evidencing
and transfer of shares held in uncertificated form (subject
always to the Articles and the facilities and requirements
of the relevant system concerned).
5
12.2 Conversion of shares held in certificated form into shares
held in uncertificated form, and vice versa, may be made in
such manner as the Board may, in its absolute discretion,
think fit (subject always to the Articles and the facilities
and requirements of the relevant system concerned).
12.3 The Company shall enter on the Register how many shares are
held by each Member in uncertificated form and in
certificated form and shall maintain the Register in each
case as required by the Articles and the relevant system
concerned.
12.4 Notwithstanding any provision of these Articles, shares in
the capital of the Company that fall within a certain class
shall not form a separate class of shares from other shares
in that class because any share in that class is held in
uncertificated form or is permitted in accordance with the
Uncertificated Securities Regulation to become a
participating security.
12.5 The provisions of Articles 14 and 15 shall not apply to
uncertificated shares.
13 COMPANY'S RIGHTS IN RESPECT OF UNCERTIFICATED SHARES
Where any class of shares is a participating security and
the Company is entitled under any provision of the Statutes,
the Uncertificated Securities Regulations or the Articles to
sell, transfer, dispose of, forfeit, re-allot, accept the
surrender of or otherwise enforce a lien over a share held
in uncertificated form, the Company shall be entitled,
subject to the provisions of the Statutes, the
Uncertificated Securities Regulations, the Articles and the
facilities and requirements of the relevant system:
13.1 to require the holder of that uncertificated share by notice
to change that share into certificated form within the
period specified in the notice and to hold that share in
certificated form so long as required by the Company;
13.2 to require the holder of that uncertificated share by notice
to give any instructions necessary to transfer title to that
share by means of the relevant system within the period
specified in the notice;
13.3 to require the holder of that uncertificated share by notice
to appoint any person to take any step, including without
limitation the giving of any instructions by means of the
relevant system, necessary to transfer that share within the
period specified in the notice; and
13.4 to take any action that the Board considers appropriate to
achieve the sale, transfer, disposal of, forfeiture,
re-allotment or surrender of that share or otherwise to
enforce a lien in respect of it.
SHARE CERTIFICATES
14 RIGHT TO SHARE CERTIFICATE
14.1 Subject to the Statutes, a person (except a recognised
person in respect of whom the Company is not required by law
to complete and have ready for delivery a certificate) on
becoming the holder of a share is entitled to receive within
2 months after allotment (or such longer period as the terms
of issue shall provide) or the lodgement of transfer,
without payment, one certificate for all the certificated
shares of each class registered in his name. In the case of
joint holders, the Company shall not be bound to issue more
than one certificate to all the joint holders and delivery
of a certificate to any one of joint holders shall be
sufficient delivery to all of them. Where part of the shares
comprised in a certificate are transferred, the Member
transferring is entitled, without payment, to a certificate
for his retained holding. Certificated shares of different
classes may not be included in the same certificate.
14.2 Every certificate shall be issued under the Seal or in
accordance with Articles 132 or 133 or such other form of
authentication as the Board may determine having regard to
the terms of issue and the rules of the London Stock
Exchange (if any) and shall specify the number, class and
distinguishing numbers (if any) of the shares to which it
relates and the amount paid up on them.
6
14.3 No Member shall be entitled to more than one certificate in
respect of any one share held by him.
15 REPLACEMENT CERTIFICATES
15.1 Where a Member holds two or more certificates for
certificated shares of one class, the Board may at his
request, on surrender of the original certificates and
without charge, cancel the certificates and issue a single
replacement certificate.
15.2 At the request of a Member, the Board may cancel a
certificate and issue two or more in its place (representing
certificated shares in such proportions as the Member may
specify) on surrender of the original certificate and on
payment of such reasonable sum as the Board may determine.
15.3 If any share certificate is worn out, defaced, destroyed or
lost, the Board may cancel it and issue a replacement
certificate on such terms as to provision of evidence and
indemnity (with or without security) and to payment of
exceptional out of pocket expenses incurred by the Company
in the investigation of that evidence and the preparation of
that indemnity and security as the Board may decide, but
otherwise without charge and, where it is worn out or
defaced, on delivery up of the old certificate.
CALLS ON SHARES
16 CALLS
16.1 The Board may, subject to the provisions of these Articles
and to any conditions of allotment, from time to time make
such calls upon the Members in respect of any moneys unpaid
on their shares (whether on account of the nominal value of
the shares or premium) as it thinks fit and each Member
shall (subject to receiving at least 14 clear days' notice
specifying the time and place of payment) pay the amount of
every call so made upon his shares to the Company at the
time and place so specified.
16.2 A call may be made payable by instalments.
16.3 A call is deemed made as soon as the resolution of the Board
authorising such call is passed and an entry in the minute
book of a resolution of the Board making the call is
conclusive evidence of the making of the call.
16.4 A call may be revoked or postponed in whole or in part as
the Board may determine.
16.5 The joint holders of a share are jointly and severally
liable to pay all calls in respect of the share. A person on
whom a call is made remains liable to pay the amount called
despite the subsequent transfer of the share in respect of
which the call is made.
17 INTEREST ON UNPAID CALLS
If any amount in respect of any call or instalment of a call
is not paid on or before the day appointed for payment, the
person from whom the amount of the call or instalment is due
shall pay interest on such amount at the Prescribed Rate
from and including that date until but excluding the date of
actual payment and all costs, charges and expenses that may
have been incurred by reason of such non-payment. The Board
may, if it thinks fit, waive payment of such interest or
costs, charges or expenses in whole or in part.
18 AMOUNTS DUE ON ALLOTMENT TREATED AS CALLS
Any amount which by the terms of allotment of a share is
made payable upon allotment or at any fixed date whether on
account of the nominal amount of the share or premium, for
all purposes of these Articles is deemed to be a call duly
made and payable on the date fixed for payment and, in case
of non-payment, the provisions of these Articles as to
payment of interest and expenses, forfeiture or otherwise
shall apply as if such amount were a call duly made and
notified.
7
19 POWER TO DIFFERENTIATE
The Board may, if it thinks fit, on the issue of shares
differentiate between the holders of such shares as to the
amount of calls to be paid and the time of payment of such
calls.
20 PAYMENT IN ADVANCE
The Board may receive from any Member willing to advance the
same, all or any part of the amounts uncalled and unpaid on
shares held by him. The Board may pay interest on the amount
paid in advance (until the same would, but for such advance,
become presently payable) not exceeding, without the consent
of the Company in general meeting, the Prescribed Rate as
may be agreed between it and such Member.
FORFEITURE
21 NOTICE IF CALL NOT PAID
If a Member fails to pay in full any call or instalment of a
call on or before the day appointed for payment, the Board
may serve a notice on him or on a person entitled by
transmission to the share in respect of which the call was
made requiring payment of so much of the call or instalment
as is unpaid, together with any interest which may have
accrued and all costs, charges and expenses incurred by the
Company by reason of such non-payment.
22 SHARES LIABLE TO BE FORFEITED
The notice shall name a further day (not being less than 14
clear days' from the date of service of the notice) on or
before which, and the place where, the payment is to be made
and shall state that if the notice is not complied with the
shares in respect of which the call was made will be liable
to be forfeited.
23 FORFEITURE
If the notice referred to in the previous Article is not
complied with, any share in respect of which it has been
given may, at any time before payment required by the notice
has been made, be forfeited by a resolution of the Board.
Such forfeiture shall include all dividends declared or
other amounts payable in respect of the forfeited share and
not actually paid before forfeiture.
24 NOTICE AFTER FORFEITURE
When a share has been forfeited, the Company shall serve
notice of the forfeiture on the person who was before
forfeiture the holder of the share or the person entitled by
transmission to the share. An entry of the fact and date of
forfeiture shall be made in the Register. No forfeiture is
invalidated by an omission to give notice or to make those
entries.
25 DISPOSAL OF FORFEITED SHARE
Subject to the provisions of the Statutes, a forfeited share
and all rights attaching to it shall become the property of
the Company and may be sold, re-allotted or otherwise
disposed of either to the person who was its holder before
such forfeiture or to any other person on such terms and in
such manner as the Board shall think fit. At any time before
a sale, re-allotment or disposal, the forfeiture may be
cancelled on such terms as the Board may think fit. Where a
forfeited share held in certificated form is to be
transferred to any person the Board may authorise some
person to execute an instrument of transfer of a forfeited
share to the transferee. Where a forfeited share held in
uncertificated form is to be transferred to any person, the
Board may exercise any of the Company's powers under
Article 13.3 to effect the transfer of the share to that
person. The Company may receive the consideration (if any)
for the share on its disposal and may register the
transferee as the holder of the share.
8
26 ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE
A Member whose shares have been forfeited shall cease to be
a Member in respect of such shares and shall, if the share
is a certificated share, surrender to the Company the
certificate for the forfeited shares. He remains liable to
pay and shall immediately pay to the Company all moneys
which at the date of forfeiture were presently payable by
him to the Company in respect of the shares with interest
from the time of forfeiture until payment at the Prescribed
Rate.
27 EVIDENCE OF FORFEITURE
A statutory declaration in writing that the declarant is the
Secretary or a Director and that a share has been forfeited
on a date stated in the declaration is conclusive evidence
of the facts stated in the declaration as against all
persons claiming to be entitled to the share and such
declaration shall (subject, if necessary, to the execution
of an instrument of transfer or transfer by means of the
relevant system, as the case may be) constitute good title
to the share. The person to whom the share is disposed of
shall be registered as the holder of the share and is not
bound to see to the application of the purchase money (if
any) and his title to the share is not affected by any
irregularity in or invalidity of the proceedings with
reference to the forfeiture or disposal of the share.
28 SURRENDER
The Board may accept a surrender of any share liable to be
forfeited under this Article and in that case references in
the Articles to forfeiture shall include surrender.
LIEN
29 LIEN ON SHARES NOT FULLY PAID
The Company has a first and paramount lien on every share
(not being a share which is fully paid up) registered in the
name of any Member, either alone or jointly with any other
person, for an amount payable in respect of the share,
whether the due date for the payment has arrived or not. The
lien extends to all dividends from time to time declared or
other moneys payable in respect of the share but the Board
may at any time declare any share to be exempt, in whole or
in part, from the provisions of this Article.
30 ENFORCEMENT OF LIEN BY SALE
For the purposes of enforcing the lien the Company may sell,
in such manner as the Board thinks fit, any share on which
the Company has a lien, if the due date for payment of the
relevant amounts has arrived and payment is not made within
14 clear days after a notice in writing, stating and
demanding payment of the amounts presently payable and
giving notice of intention to sell in default, has been
given to the holder of the share or the person entitled by
transmission to the share. To give effect to a sale, the
Board may, if the shares are certificated shares, authorise
a person to execute an instrument of transfer of shares in
the name and on behalf of the holder or the person entitled
by transmission to, or in accordance with the directions of,
the purchaser. If the shares are uncertificated shares the
Board may exercise any of the Company's powers under
Article 13.3 to effect the transfer of the shares to, or in
accordance with the directors of, the purchaser. The
purchaser is not bound to see to the application of the
purchase money and his title to the share is not affected by
any irregularity in or invalidity of the proceedings
connected with the sale.
31 APPLICATION OF PROCEEDS OF SALE
The net proceeds of a sale effected by the preceding
Article, after payment of the costs of the sale, shall be
applied in or towards payment or satisfaction of so much of
the sum in respect of which the
9
lien exists as is presently payable. Any residue shall
(whether the shares sold are certificated shares or
uncertificated shares, subject to a like lien for any moneys
not presently payable as existed upon the shares prior to
the sale and, if the shares sold are certificated shares, on
surrender to the Company for cancellation of the certificate
for the shares sold or the provision of an indemnity (with
or without security) as to any lost or destroyed certificate
required by the Board) be paid to the holder of or the
person entitled by transmission to the shares immediately
prior to the sale.
TRANSFER OF SHARES
32 FORM OF TRANSFER
Subject to these Articles, any Member may transfer all or
any of his certificated shares by instrument of transfer in
writing in any usual form or in such other form as the Board
may approve and the instrument must be signed by or on
behalf of the transferor and (except in the case of a share
which is fully paid up) by or on behalf of the transferee
but need not be under seal. The transferor is deemed to
remain the holder of the share until the name of the
transferee is entered in the Register in respect of it.
33 RIGHT TO REFUSE REGISTRATION
33.1 Subject to Article 42, the Board may refuse to register a
transfer of a certificated share unless the instrument of
transfer:
33.1.1 is in respect of only one class of shares;
33.1.2 is in favour of not more than four joint transferees;
33.1.3 is duly stamped (if required); and
33.1.4 is delivered for registration to the Office or such other
place as the Board may decide accompanied by the certificate
for the shares to be transferred (save in the case of a
transfer by a recognised person to whom no certificate was
issued) and such other evidence as the Board may reasonably
require to prove the title of the transferor and the due
execution by him of the transfer or, if the transfer is
executed by some other person on his behalf, the authority
of that person to do so.
33.2 The Board may impose restrictions upon the transfer of a
certificated share which is not fully paid, provided that
the restrictions are not such as to prevent dealings in the
shares from taking place on an open and proper basis.
33.3 The Board may, in exceptional circumstances approved by the
London Stock Exchange, disapprove the transfer of a
certificated share, provided that exercise of such powers
does not disturb the market.
33.4 The Board may refuse to register the transfer of an
uncertificated share in any circumstances permitted by the
London Stock Exchange, the Uncertificated Securities
Regulations and the rules and practices of the operator of
the relevant system.
34 NOTICE OF REFUSAL TO REGISTER
If the Board refuses to register a transfer of any share it
shall within 2 months after the date on which the transfer
was lodged with the Company or the operator instruction was
received, as the case may be, send to the transferor and the
transferee notice of the refusal.
35 FEES ON REGISTRATION
No fee shall be charged for the registration of a transfer
or other document relating to or affecting the title to any
share or for making any entry in the Register affecting the
title to any share.
10
36 SUSPENSION OF REGISTRATION AND CLOSING OF REGISTER
Subject to the provisions of section 358 of the Act, the
registration of transfers of shares or of any class of
shares may be suspended at such times and for such periods
as the Board may determine but the Register shall not be
closed for more than 30 days in any year and the Board may
not suspend the registration of transfers of any
participating security without the consent of the operator
of the relevant system.
37 RETENTION OF INSTRUMENTS OF TRANSFER
Subject to the following Article, all instruments of
transfer which are registered may be retained by the Company
but any instrument of transfer which the Board refuses to
register shall (except in the case of suspected fraud) be
returned to the person depositing it.
38 DESTRUCTION OF DOCUMENTS
38.1 The Company may destroy (a) all instruments of transfer of
shares which have been registered, and all other documents
on the basis of which any entry is made in the Register, at
any time after the expiration of six years from the date of
registration; (b) all dividend mandates or any variation or
cancellation of them or notifications of change of address
or name at any time after the expiration of two years from
the date of recording them; (c) all cancelled share
certificates at any time after the expiration of one year
from the date of cancellation; and (d) any other document on
the basis of which any entry in the Register is made at any
time after the expiration of six years from the date an
entry was made in the Register. It shall conclusively be
presumed in favour of the Company that every instrument of
transfer so destroyed was a valid and effective instrument
duly and properly registered and that every share
certificate so destroyed was a valid certificate duly and
properly cancelled and that every other document destroyed
was a valid and effective document in accordance with the
recorded particulars in the books or records of the Company.
38.2 The provisions of this Article shall apply only to the
destruction of documents in good faith and without notice of
any claim to the Company (regardless of the parties to the
claim) that the document might be relevant to the claim.
38.3 Nothing contained in this Article imposes on the Company any
liability in respect of the destruction of any such document
earlier than provided for in this Article or in any case
where the conditions of this Article are not fulfilled.
38.4 References in this Article to the destruction of any
document include references to its disposal in any manner.
TRANSMISSION OF SHARES
39 ON DEATH
If a Member dies, the survivor or survivors (where the
deceased was a joint holder) and the executors or
administrators of the deceased (where he was a sole or only
surviving holder) shall be the only persons recognised by
the Company as having any title to his interest in the
shares. Nothing in these Articles releases the estate of a
deceased holder (whether sole or joint) from any liability
in respect of any share held by him.
40 ELECTION OF PERSON ENTITLED BY TRANSMISSION
40.1 Any person becoming entitled by transmission to a share may,
upon such evidence as to title being provided as the Board
may require, elect either to be registered himself as holder
of the share or have a person nominated by him registered as
holder. All the provisions of these Articles relating to the
transfer of shares apply to any such notice or transfer as
if the death or bankruptcy or other
11
event giving rise to transmission had not occurred and the
notice or transfer was executed by such Member.
40.2 If any person becoming entitled by transmission to a
certificated share elects to be registered himself he shall
give notice in writing to the Company to that effect. If he
elects to have another person registered, and the share is a
certificated share, he shall execute an instrument of
transfer of the share to that person. If he elects to become
holder or have another person registered and the share is an
uncertificated share, he shall take any action the Board may
require (including without limitation the execution of any
document and the giving of any instruction by means of a
relevant system) to enable himself or that person to be
registered as the holder of the share.
40.3 The Board may give notice requiring a person to make the
election referred to in this Article. If that notice is not
complied with within 60 days the Board may withhold payment
of all dividends and other amounts payable in respect of the
share until notice of election has been made.
41 RIGHTS ON TRANSMISSION
Save as otherwise provided by these Articles, a person
becoming entitled by transmission to a share shall be
entitled to receive, and may give a good discharge for, all
benefits arising or accruing on or in respect of the share
and the same dividends and other advantages to which he
would be entitled if he were the registered holder of the
share. However, the person entitled by transmission is not
entitled to exercise any right conferred by membership in
relation to meetings of the Company until he shall have been
registered as a Member in respect of the share. Where a
person becomes entitled by transmission to a share, the
rights of the holder in relation to that share cease.
DISCLOSURE OF INTERESTS IN SHARES
42 SANCTIONS FOR FAILURE TO DISCLOSE INTEREST IN SHARES
Where notice is served by the Company under section 212 of
the Act (a "SECTION 212 NOTICE") on a Member, or another
person whom the Company knows or has reasonable cause to
believe to be interested in shares held by that Member, and
the Member or other person has failed in relation to any
shares (the "DEFAULT SHARES", which expression includes any
shares issued after the date of the section 212 notice in
right of those shares) to give the Company the information
required within 14 days from the date of service of the
section 212 notice, the following sanctions apply, unless
the Board otherwise decides:
42.1 the Member is not entitled in respect of the default shares
to be present or be counted in the quorum or to vote (either
in person or by proxy) at a general meeting or at a separate
meeting of the holders of a class of shares or on a poll or
to exercise other rights conferred by membership in relation
to the meeting or poll; and
42.2 where the default shares represent at least 0.25 per cent.
in nominal value of the issued shares of their class:
42.2.1 a dividend (or any part of a dividend) or other amount
payable in respect of the default shares shall be withheld
by the Company, which has no obligation to pay interest on
it, and the Member is not entitled to elect, pursuant to
Article 151, to receive shares instead of a dividend; and
42.2.2 no transfer of any of the default shares shall be registered
unless (1) the transfer is an excepted transfer or (2) the
Member is not himself in default in supplying the informa-
tion required and the Member proves to the satisfaction of
the Board that no person in default in supplying the
information required is interested in any of the shares the
subject of the transfer or (3) registration of the transfer
is required by the Uncertificated Securities Regulations.
12
43 REMOVAL OF SANCTIONS AND CONVERSION OF UNCERTIFICATED SHARES
43.1 The sanctions under Article 42 cease to apply 7 days after
the earlier of receipt by the Company of:
43.1.1 notice of registration of an excepted transfer, in relation
to the default shares the subject of the excepted transfer;
43.1.2 all information required by the section 212 notice, in a
form satisfactory to the Board, in relation to any default
shares; and
43.1.3 the Company may exercise any of its powers under
Article 13.3 in respect of any default shares in
uncertificated form.
44 NOTICE TO PERSON OTHER THAN A MEMBER
Where, on the basis of information obtained from a Member in
respect of a share held by him, the Company issues a section
212 notice to another person, it shall at the same time send
a copy of the section 212 notice to the Member, but the
accidental omission to do so, or the non-receipt by the
Member of the copy, does not invalidate or otherwise affect
the application of Article 42.
45 INTEREST IN SHARES, FAILURE TO GIVE INFORMATION AND EXCEPTED
TRANSFERS
45.1 For the purpose of Articles 42 to 44:
45.1.1 "INTERESTED" has the same meaning as that set out in section
212 of the Act;
45.1.2 reference to a person having failed to give the Company the
information required by a section 212 notice, or being in
default in supplying such information, includes
(a) reference to his having failed or refused to give all or
any part of it and (b) reference to his having given
information which he knows to be false in a material
particular or having recklessly given information which is
false in a material particular;
45.1.3 "EXCEPTED TRANSFER" means, in relation to shares held by a
Member (a) a transfer pursuant to acceptance of a takeover
offer for the Company (within the meaning of section
428(1) of the Act); or (b) a transfer in consequence of a
sale made through a recognised investment exchange (as
defined in the Financial Services Act 1986) another stock
exchange outside the United Kingdom on which shares in the
capital of the Company are normally traded; or (c) a
transfer which is shown to the satisfaction of the Board to
be made in consequence of a sale of the whole of the
beneficial interest in the shares to a person who is
unconnected with the Member and with any other person
appearing to be interested in the shares.
45.2 The provisions of Articles 42 to 45 are in addition and
without prejudice to the provisions of the Statues.
ALTERATIONS TO CAPITAL
46 INCREASE, CONSOLIDATION, SUB-DIVISION AND CANCELLATION
The Company may by ordinary resolution:
46.1 increase its share capital by a sum to be divided into
shares of an amount prescribed by the resolution;
46.2 consolidate and divide all or any of its share capital into
shares of a larger amount than its existing shares;
13
46.3 cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person and diminish the amount of its share capital by the
amount of the shares so cancelled;
46.4 subject to the Statutes, sub-divide all or any of its shares
into shares of a smaller amount and may by the resolution
determine that the shares resulting from such sub-division
may have any preferred or other special rights or be subject
to any restrictions, as compared with the others.
47 REDUCTION OF CAPITAL
Subject to the Statutes and to the rights attached to
existing shares, the Company may by special resolution
reduce its share capital, any capital redemption reserve
fund or any share premium account in any manner.
48 FRACTIONS
If, as the result of consolidation and division or
sub-division of shares, Members become entitled to fractions
of a share, the Board may on behalf of the Members deal with
the fractions as it thinks fit. In particular, the Board
may:
48.1 sell fractions of a share to a person (including, subject to
the Statutes, to the Company) for the best price reasonably
obtainable and distribute the net proceeds of sale in due
proportion amongst the persons entitled (except that if the
amount due to a person is less than L3, or such other sum as
the Board may decide, the sum may be retained for the
benefit of the Company). Where certificated shares are to be
sold, the Board may authorise a person to execute an
instrument of transfer of shares to, or in accordance with
the directions of, the purchaser and may cause the name of
the purchaser or transferee to be entered in the Register as
the holder of the shares. Where uncertificated shares are to
be sold, the Board may do all acts and things it considers
necessary or expedient to effect the transfer of the shares
to, or in accordance with the directions of, the purchaser.
The purchaser is not bound to see to the application of the
purchase money and the title of the transferee to the shares
is not affected by an irregularity or invalidity in the
proceedings connected with the sale; or
48.2 subject to the Statutes, issue to a Member credited as fully
paid up by way of capitalisation the minimum number of
shares required to round up his holding of shares to a
number which, following consolidation and division or
sub-division, leaves a whole number of shares (such issue
being deemed to have been effected immediately before
consolidation or sub-division, as the case may be). The
amount required to pay up those shares may be capitalised as
the Board thinks fit out of amounts 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, and applied in paying up in
full the appropriate number of shares. A resolution of the
Board capitalising part of the reserves has the same effect
as if the capitalisation had been declared by ordinary
resolution of the Company pursuant to Article 153. In
relation to the capitalisation the Board may exercise all
the powers conferred on it by Article 153 without an
ordinary resolution of the Company.
GENERAL MEETINGS
49 ANNUAL GENERAL MEETING
An annual general meeting of the Company shall be held in
each year (in addition to any other meetings which may be
held in that year) and such meeting shall be specified as
the annual general meeting in the notice calling it. Not
more than fifteen months shall elapse between the date of
one annual general meeting and the date of the next. Subject
to the provisions of this Article and of the
14
Statutes, the annual general meeting shall be held at such
time and place as the Board shall appoint.
50 EXTRAORDINARY GENERAL MEETING
All general meetings other than annual general meetings are
called extraordinary general meetings.
51 CONVENING OF EXTRAORDINARY GENERAL MEETINGS
The Board may convene an extraordinary general meeting
whenever it thinks fit. The Board must convene an
extraordinary general meeting on receipt of a requisition in
accordance with the Statutes or, in default, an
extraordinary general meeting may be convened by such
requisitionists, as provided by the Statutes. If at any time
there are not sufficient Directors capable of acting to form
a quorum of the Board any Director or any two Members may
convene an extraordinary general meeting in the same manner
as nearly as possible as that in which meetings may be
convened by the Board. In the case of an extraordinary
general meeting convened on a requisition or by
requisitionists, no business other than that stated in the
requisition or proposed by the Board shall be transacted.
52 LENGTH AND FORM OF NOTICE
At least 21 clear days' notice of every annual general
meeting and of every extraordinary general meeting at which
it is proposed to pass a special resolution and at least 14
clear days' notice of every other extraordinary general
meeting shall be given, in the manner set out below, to such
Members as are, under the provisions of these Articles, or
the terms of issue of shares, entitled to receive such
notices from the Company and to the Auditors. Every notice
of meeting shall specify whether the meeting is an annual
general meeting or an extraordinary general meeting, the
place, date and time of the meeting, in the case of special
business, the general nature of such business, if a meeting
is convened to pass a special or extraordinary resolution,
the intention to propose the resolution as a special or
extraordinary resolution (as the case may be) and shall
state, with reasonable prominence, that a Member entitled to
attend and vote at the meeting is entitled to appoint one or
more proxies to attend and, on a poll, vote instead of him
and that a proxy need not also be a Member.
53 MEETING CALLED ON SHORT NOTICE
A meeting, although called by shorter notice than that
specified in the preceding Article, is deemed to be duly
called if it is so agreed:
53.1 in the case of an annual general meeting, by all the Members
entitled to attend and vote at the meeting; and
53.2 in the case of any other meeting, by a majority in number of
the Members having a right to attend and vote at the
meeting, being a majority together holding not less than 95
per cent in nominal value of the shares giving a right to
attend and vote at the meeting.
54 OMISSION TO SEND NOTICE
The accidental omission to give notice of any meeting or, in
cases where it is sent out with the notice, an instrument of
proxy to, or the non-receipt of either by, any person
entitled to receive notice does not invalidate any
resolution passed or proceedings held at that meeting.
55 SPECIAL BUSINESS
55.1 All business that is transacted at an extraordinary general
meeting is deemed special and all business that is
transacted at an annual general meeting shall also be deemed
special, with the exception of declaring a dividend, the
receipt, consideration and adoption of the accounts and the
reports of the Directors and the Auditors and any other
documents accompanying or annexed to
15
the balance sheet, the appointment of Directors and the
Auditors and the fixing of, or determination of the manner
of fixing, the remuneration of the Auditors.
PROCEEDINGS AT GENERAL MEETINGS
56 QUORUM
No business shall be transacted at any general meeting
unless a quorum is present when the meeting proceeds to
business. Two persons entitled to vote, each being a Member
or a proxy for a Member, shall be a quorum. The absence of a
quorum does not prevent the appointment of a chairman in
accordance with these Articles, where such appointment is
not treated as part of the business of the meeting.
57 CHAIRMAN
The chairman of the Board or, in his absence, the deputy
chairman shall preside at every general meeting; but if
there is no chairman or deputy chairman or neither is
willing or able to preside or if neither is present within
15 minutes after the time fixed for the start of the
meeting, the Directors present shall choose a Director or,
if only one Director is present and willing to act, he shall
be chairman. In default, the Members present in person or by
proxy shall choose one of their number to be chairman of the
meeting.
58 QUORUM NOT PRESENT
58.1 If within 15 minutes (or such longer period as the chairman
in his absolute discretion may decide) from the time fixed
for the start of a general meeting a quorum is not present,
the meeting, if convened by or on the requisition of
Members, shall be dissolved. In any other case it shall
stand adjourned to such time and place as the chairman of
the meeting may decide.
58.2 At an adjourned meeting if a quorum is not present within 15
minutes (or such longer period as the chairman in his
absolute discretion may decide) from the time fixed for the
start of the meeting the adjourned meeting shall be
dissolved.
58.3 The Company shall give not less than 7 clear days' notice,
specifying the place, date and time of any meeting adjourned
for the lack of a quorum and the notice shall state the
quorum requirement.
59 ADJOURNED MEETING
59.1 The chairman of the meeting may, with the consent of the
meeting at which a quorum is present (and shall, if so
directed by the meeting) adjourn any meeting from time to
time and from place to place or for an indefinite period.
Without prejudice to any other power which he may have under
the provisions of the Articles or at common law, the
chairman may, without the consent of the meeting, interrupt
or adjourn a meeting from time to time and from place to
place or for an indefinite period if he decides that it has
become necessary to do so in order to (1) secure the proper
and orderly conduct of the meeting or (2) give all persons
entitled to do so a reasonable opportunity of speaking and
voting at the meeting or (3) ensure that the business of the
meeting is properly dealt with.
59.2 Whenever a meeting is adjourned for 30 days or more or for
an indefinite period, at least 7 clear days' notice,
specifying the place, date and time of the adjourned meeting
shall be given as in the case of an original meeting and the
general nature of the business to be transacted.
59.3 Except in the circumstances set out in Articles 58.3 and
59.2, no Member shall be entitled to any notice of an
adjournment or of the business to be transacted at an
adjourned meeting. No business shall be transacted at any
adjourned meeting other than the business which might have
been transacted at the meeting from which the adjournment
took place.
16
60 ACCOMMODATION OF MEMBERS AT MEETING
If it appears to the chairman that the meeting place
specified in the notice convening the meeting is inadequate
to accommodate all Members entitled and wishing to attend,
the meeting is duly constituted and its proceedings valid if
the chairman is satisfied that adequate facilities are
available to ensure that a Member who is unable to be
accommodated is able to (1) participate in the business for
which the meeting has been convened and (2) hear and see all
persons present who speak (whether by the use of
microphones, loud-speakers, audio-visual communications
equipment or otherwise), whether in the meeting place or
elsewhere, and (3) be heard and seen by all other persons
present in the same way.
61 SECURITY
The Board may make any arrangement and impose any
restriction it considers appropriate to ensure the security
of a meeting including, without limitation, the searching of
a person attending the meeting and the restriction of the
items of personal property that may be taken into the
meeting place. The Board is entitled to refuse entry to a
meeting to a person who refuses to comply with these
arrangements or restrictions.
62 ORDER OF MEETING
The chairman shall take such action as he thinks fit to
promote the orderly conduct of general meetings. The
decision of the chairman on points of order, matters of
procedure or arising incidentally out of the business of the
meeting shall be final and conclusive, as shall be his
determination, in good faith, whether any point or matter is
of such a nature.
63 AMENDMENT OF RESOLUTIONS
If an amendment proposed to a resolution under consideration
is ruled out of order by the chairman of the meeting, the
proceedings on the substantive resolution are not
invalidated by an error in his ruling.
64 MEMBERS' RESOLUTION IN WRITING
A resolution in writing signed by or on behalf of all the
Members who would have been entitled to vote on it as if it
had been passed at a general meeting at which he was present
is as valid and effective as a resolution passed at a
general meeting duly convened and held and may consist of
several documents in the same form each duly signed by or on
behalf of one or more Members. If the resolution in writing
is described as a special resolution or as an extraordinary
resolution, it has effect as such.
VOTING
65 METHOD OF VOTING
65.1 At a general meeting, a resolution put to the vote of the
meeting is decided on a show of hands unless, before or on
the declaration of the result of the show of hands, a poll
is demanded by:
65.1.1 the chairman of the meeting; or
65.1.2 not less than 5 Members present in person or by proxy and
entitled to vote at the meeting; or
65.1.3 a Member or Members present in person or by proxy and
representing in aggregate not less than one-tenth of the
total voting rights of all the Members having the right to
vote at the meeting; or
17
65.1.4 by a Member or Members present in person or by proxy holding
shares in the Company conferring a right to vote at the
meeting being shares on which an aggregate sum has been paid
up equal to not less than one-tenth of the total sum paid up
on all the shares conferring that right.
65.2 Unless a poll is demanded and the demand is not withdrawn a
declaration by the chairman of the meeting that a resolution
has, on a show of hands, been carried or carried unanimously
or by a particular majority or lost or not carried by a
particular majority, and an entry to that effect in the
minute book of the Company, is conclusive evidence of the
fact without proof of the votes recorded in favour of or
against such resolution.
66 PROCEDURE ON A POLL
66.1 A poll demanded on the election of a chairman or on a
question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken at such time
(not being more than 30 days from the date of the meeting or
the adjourned meeting at which such poll is demanded) and
place and in such manner as the chairman of the meeting
directs and the result of the poll is deemed to be the
resolution of the meeting at which the poll is demanded. No
notice need be given of a poll not taken immediately if the
time and place at which it is to be taken are announced at
the meeting at which it is demanded. In any other case, at
least 7 clear days' notice shall be given specifying the
time and place at which the poll is to be taken.
66.2 If a poll is properly demanded, it shall be taken in such
manner as the chairman directs. He may appoint scrutineers,
who need not be Members, and may fix a time and place for
declaring the result of the poll. The result of the poll is
deemed to be the resolution of the meeting at which the poll
is demanded.
66.3 The demand for a poll may be withdrawn but only with the
consent of the chairman. A demand withdrawn in this way
validates the result of a show of hands declared before the
demand is made. In the case of a poll demanded before the
declaration of the result of a show of hands, the meeting
shall continue as if the demand had not been made.
66.4 The demand for a poll (other than on the election of the
chairman or on a question of adjournment) does not prevent
the continuance of a meeting for the transaction of any
business other than the question on which a poll has been
demanded.
67 CASTING VOTE
In the case of an equality of votes, whether on a show of
hands or on a poll, the chairman of the meeting is entitled
to a further or casting vote in addition to the votes to
which he may be entitled as a Member.
68 OBJECTION TO AND ERROR IN VOTING
Any objection raised to the qualification of any voter, or
to the counting of or failure to count any vote, does not
invalidate the decision of the meeting on any resolution
unless it is raised at the meeting or adjourned meeting at
which the vote objected to is tendered or at which the error
occurs. Any objection or error shall be referred to the
chairman of the meeting and only invalidates the decision of
the meeting on any resolution if the chairman decides that
the same is of sufficient magnitude to affect the decision
of the meeting. The decision of the chairman on such matters
is final and conclusive.
69 VOTES OF MEMBERS
69.1 Subject to any special terms as to voting upon which any
share may be issued, or may be held, and subject to the
provisions of these Articles, on a show of hands every
Member present in person and
18
entitled to vote shall have one vote and on a poll every
Member present in person or by proxy and entitled to vote
shall have one vote for every share of which he is the
holder.
69.2 If any Member is a Person with mental disorder or is
otherwise incapacitated he may vote, whether on a show of
hands or on a poll, by his guardian, receiver, curator bonis
or other person authorised for that purpose and appointed by
the Court either personally or by proxy if such evidence as
the Board may reasonably require of the authority of the
person claiming to exercise the right to vote is received at
the Office (or other place specified in accordance with the
Articles for the deposit of instruments of proxy) within the
time limits prescribed by the Articles for the deposit of
instruments of proxy for use at the meeting or adjourned
meeting or poll at which such person is to vote.
69.3 If two or more persons are jointly entitled to a share, 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 other holders of the share and seniority is determined
by the order in which the names stand in the Register.
70 RESTRICTION ON VOTING RIGHTS
No Member is entitled to be present or to be counted in the
quorum or vote, either in person or by proxy, at any general
meeting or at any separate meeting of the holders of a class
of shares or on a poll or to exercise other rights conferred
by membership in relation to the meeting or poll, unless all
calls or other moneys due and payable in respect of the
share have been paid. This restriction ceases on payment of
the amount outstanding and all costs, charges and expenses
incurred by the Company by reason of non-payment.
71 VOTING BY PROXY
A proxy need not be a Member and a Member may appoint one or
more than one person to act as his proxy. On a poll votes
may be given in person or by proxy and a Member entitled to
more than one vote need not, if he votes, use all of his
votes or cast all the votes he uses in the same way. Deposit
of an instrument of proxy does not prevent a Member from
attending and voting in person at the meeting or an
adjournment or on a poll. An instrument of proxy is (unless
the contrary is stated in it) valid for an adjournment of
the meeting as well as for the meeting or meetings to which
it relates. An instrument of proxy is valid for 12 months
from the date of execution.
72 APPOINTMENT OF MORE THAN ONE PROXY
If a Member appoints more than one person to act as his
proxy the instrument appointing each proxy shall specify the
shares held by the Member in respect of which each proxy is
to vote and no Member may appoint more than one proxy (save
in the alternate) to vote in respect of any one share held
by that Member. When two or more valid but differing
instruments of proxy are delivered for the same share for
use at the same meeting, the one which is last validly
delivered (regardless of its date or the date of its
execution) shall be treated as replacing and revoking the
other or others as regards that share.
73 EXECUTION OF PROXY
The instrument appointing a proxy shall be in writing in any
usual form or in such other form as the Board may approve
executed by the appointor, or his attorney duly authorised
in writing, or if the appointor is a corporation, under its
seal or under the hand of its officer or attorney or other
person duly authorised to sign. The Directors may require
evidence of authority of such officer or attorney.
74 PROXY VALID THOUGH AUTHORITY REVOKED
A vote given or poll demanded by a proxy or authorised
representative of a company is valid notwithstanding
termination of his authority unless notice in writing of the
termination is received at the Office (or other place
specified in accordance with the Articles for the deposit of
instruments
19
of proxy) one hour at least before the time fixed for
holding the meeting or adjourned meeting at which the vote
is given or (where the poll is taken other than on the same
day as the meeting or adjourned meeting) the time appointed
for the taking of the poll at which the vote is cast.
75 PROXY CAN DEMAND A POLL
The instrument appointing a proxy is deemed (unless the
contrary is stated in it) to confer authority to demand or
join in demanding a poll and to vote on a resolution or
other business which may properly come before the meeting or
meetings for which it is given as the proxy thinks fit.
76 DEPOSIT OF PROXY
76.1 The instrument appointing a proxy and the power of attorney
or other authority, if any, under which it is signed, or a
copy of it notarially certified, or certified in some other
way approved by the Board, shall be:
76.1.1 deposited at such place as may be specified for that purpose
in the notice convening the meeting or in the instrument of
proxy or if no place is so specified at the Office at least
48 hours before the time appointed for holding the meeting
or adjourned meeting or the taking of a poll at which the
person named in the instrument proposes to vote; or
76.1.2 in the case of a meeting adjourned for less than 28 days but
more than 48 hours or in the case of a poll taken more than
48 hours after it is demanded, deposited as required by
Article 76.1 not less than 24 hours before the time
appointed for the holding of the adjourned meeting or the
taking of the poll; or
76.1.3 in the case of a meeting adjourned for less than 48 hours or
in the case of a poll not taken immediately but taken not
more that 48 hours after it was demanded, delivered at the
adjourned meeting or at the meeting at which the poll was
demanded to the chairman or to the Secretary or to a
Director.
76.2 An instrument of proxy not deposited or delivered in
accordance with this Article is invalid.
77 SENDING INSTRUMENT OF PROXY
Subject to the Statutes, the Board may, at the expense of
the Company, send by post or otherwise to all or none of the
persons entitled to receive notice of and to vote at a
meeting, instruments of proxy (with or without provision for
their return prepaid) either in blank or nominating in the
alternative any one or more of the Directors or the chairman
of the meeting or any other person or persons. If sent the
instrument shall provide for two-way voting (without
prejudice to a right to abstain) on all resolutions set out
in the notice of meeting.
78 COMPANY ACTING BY AUTHORISED REPRESENTATIVE
A company which is a Member may, by resolution of its
directors or other governing body, authorise any person to
act as its representative at any meeting of the Company or
at any separate meeting of the holders of a class of shares
and such representative shall be entitled to exercise the
same powers on behalf of the company which he represents as
that company could exercise if it were an individual Member.
The company is, for the purposes of the Articles, deemed to
be present in person at a meeting if the representative is
present. All references to attending and voting in person
shall be construed accordingly. A Director, the Secretary or
any other person authorised for the purpose by the Secretary
may require the representative to produce a certified copy
of the resolution of authorisation before permitting him to
exercise his powers.
20
APPOINTMENT OF DIRECTORS
79 POWER OF COMPANY TO APPOINT DIRECTORS
Subject to the Articles, the Company may, by ordinary
resolution, appoint a person who is willing to act to be a
Director, either to fill a vacancy or as an addition to the
Board, but the total number of Directors may not exceed a
maximum number fixed in accordance with the Articles.
80 NUMBER OF DIRECTORS
Unless and until otherwise determined by the Company by
ordinary resolution the maximum number of Directors is 10
and the minimum number of Directors is 2.
81 POWER OF THE BOARD TO APPOINT DIRECTORS
The Board may appoint a person who is willing to act to be a
Director, either to fill a vacancy or as an addition to the
Board, but the total number of Directors may not exceed a
maximum number fixed in accordance with the Articles. A
Director so appointed shall hold office only until the
dissolution of the annual general meeting following next
after his appointment, unless he is reappointed during the
meeting. A Director so retiring shall not be taken into
account in determining the number of Directors who are to
retire by rotation at such meeting.
82 NO SHARE QUALIFICATION
A Director shall not require a share qualification, but
shall nevertheless be entitled to attend and speak at any
general meeting of, or at any separate meeting of the
holders of any class of shares in, the Company.
EXECUTIVE DIRECTORS
83 APPOINTMENT OF EXECUTIVE DIRECTORS
The Board may appoint one or more of its body to hold
executive office, including the office of managing or joint
or assistant managing director. Any such appointments shall
be on such terms (including remuneration) and for such
period as the Board may determine, subject to the Statutes.
84 TERMINATION OF EXECUTIVE OFFICE
The appointment of any Director to any executive office may
be terminated by the Board, without prejudice to any claim
he may have for damages for breach of contract.
85 POWERS OF EXECUTIVE DIRECTOR
The Board may delegate to a Director holding any executive
office any of the powers, authorities and discretions
exercisable by the Board for such time and on such terms and
conditions as it thinks fit. The Board may revoke or alter
the terms and conditions of the delegation and may retain or
exclude the right of the Board to exercise the delegated
powers, authorities or discretions collaterally with the
executive Director.
ROTATION, RETIREMENT AND REMOVAL OF DIRECTORS
86 VACATION OF OFFICE BY DIRECTOR
86.1 The office of a Director shall be vacated if:
86.1.1 he ceases to be a Director by virtue of any provision of the
Statutes, is removed from office pursuant to any provision
of the Articles or he becomes prohibited by law from being a
Director; or
21
86.1.2 he becomes bankrupt, has an interim receiving order made
against him or makes any arrangement or composition with his
creditors generally or applies to the court for an interim
order under section 253 of the Insolvency Act 1986 in
connection with a voluntary arrangement under that Act; or
86.1.3 he is a Person with mental disorder and the Board resolves
that his office be vacated; or
86.1.4 he resigns by notice in writing to the Company delivered to
the Secretary at the Office or tendered at a Board meeting;
or
86.1.5 he does not attend any Board meetings for a period of 6
months; or
86.1.6 he is removed from office by notice in writing served on him
signed by or on behalf of all the other Directors which
removal shall be deemed to be an act of the Company and
shall have effect without prejudice to any claim he may have
for damages for breach of contract.
86.2 A resolution of the Board declaring a Director to have
vacated office under the terms of this Article is conclusive
as to the fact and grounds of vacation stated in the
resolution.
87 NO RETIREMENT ON ACCOUNT OF AGE
No person is incapable of being appointed a Director by
reason of his having reached the age of 70 or any other age.
Special notice is not required in connection with the
appointment or approval of the appointment of such person.
No Director is required to vacate his office because he has
reached the age of 70 or any other age and section 293 of
the Act does not apply to the Company.
88 RETIREMENT BY ROTATION
At each annual general meeting one third of the Directors
who are subject to retirement by rotation or if their number
is not 3 or a multiple of 3 then the number nearest to but
not exceeding one third shall retire from office. If the
number of Directors subject to retirement by rotation is
fewer than 3, one of such Directors shall retire.
89 DIRECTORS SUBJECT TO RETIREMENT
Subject to the Statutes and the Articles, the Directors to
retire by rotation at the annual general meeting in every
year shall be in addition to any Director who wishes to
retire and not to offer himself for reappointment and any
Director to retire pursuant to Article 81. The Directors to
retire by rotation shall be those Directors who have been
longest in office since their last appointment or
reappointment. As between 2 or more Directors who have been
in office an equal length of time, the Directors to retire
shall, in the absence of agreement, be selected from among
them by lot. The Directors to retire on each occasion shall
be determined on the basis of the composition of the Board
at the start of business on the date of the notice convening
the annual general meeting, disregarding a change in the
number or identity of the Directors after that time but
before the close of the meeting.
90 POSITION OF RETIRING DIRECTOR
A Director who retires at an annual general meeting, whether
by rotation or otherwise, may, if willing to act, be
reappointed. If he is not reappointed or deemed reappointed,
he may retain office until the meeting appoints someone in
his place or, if it does not do so, until the end of the
meeting.
91 DEEMED REAPPOINTMENT
The Company, at the meeting at which a Director retires by
rotation, may fill the vacated office and, if it does not do
so, the retiring Director is, if willing, deemed
reappointed, unless at such
22
meeting it is expressly resolved not to fill such vacated
office or unless a resolution for the reappointment of such
Director is put to the meeting and lost.
92 ELIGIBILITY OF NEW DIRECTORS
No person other than a Director retiring at the meeting is
eligible for appointment or reappointment as a Director at
any general meeting unless he is recommended by the Board
for election, or, not less than 7 nor more than 42 days
before the day appointed for the meeting, notice in writing
addressed to the Secretary at the Office has been given by a
Member qualified to be present and vote at the meeting of
his intention to propose such person for appointment or
reappointment and notice in writing, signed by the person to
be proposed, of his willingness to be appointed or
reappointed.
93 VOTING ON RESOLUTION FOR APPOINTMENT
Every resolution of a general meeting for the appointment or
reappointment of a Director shall relate to one named person
and a single resolution for the appointment or reappointment
of 2 or more persons as Directors is void, unless an
ordinary resolution that the resolution is proposed in this
way has first been agreed to by the meeting without any vote
being given against it.
94 REMOVAL BY ORDINARY RESOLUTION
In addition to any power of the Company under the Statutes
to remove a Director, the Company may by ordinary resolution
remove any Director before the expiration of his period of
office (without prejudice to a claim for damages for breach
of contract) and may, subject to the Articles, by ordinary
resolution appoint another Director, who is willing to act,
in his place. A person appointed in place of a Director so
removed shall be subject to retirement at the same time as
if he had become a Director on the day on which the Director
in whose place he is appointed was last appointed or
reappointed a Director.
DIRECTORS' REMUNERATION, EXPENSES AND BENEFITS
95 DIRECTORS' FEES
There shall be available to be paid out of the funds of the
Company to the Directors as fees in each year an aggregate
sum not exceeding L100,000 as the Board may determine, such
sum to be divided among such Directors in such proportions
as the Board may decide or, in default of agreement,
equally. Any Director holding the office of director for
part of a year shall, unless otherwise agreed, be entitled
only to a proportionate part of such fee. The Company may by
ordinary resolution increase the amount of the fees payable
under this Article. A fee payable pursuant to the provisions
of this Article is distinct from any salary, remuneration or
other amount payable to him pursuant to other provisions of
the Articles and accrues from day to day.
96 EXPENSES
The Directors are entitled to be repaid all reasonable
travelling, hotel and other expenses properly incurred by
them in the performance of their duties as Directors,
including their expenses of travelling to and from meetings
of the Board or committees of the Board or general meetings
or separate meetings of the holders of a class of shares and
any expenses incurred by them in obtaining independent
professional advice.
97 REMUNERATION OF EXECUTIVE DIRECTORS
The remuneration of a Director appointed to hold employment
or executive office in accordance with the Articles may be a
fixed sum of money or in whole or in part by participation
in profits or otherwise as the Board may determine and may
be in addition to or instead of a fee payable to him for his
services as Director pursuant to the Articles.
23
98 ADDITIONAL REMUNERATION
The Board may grant reasonable additional remuneration and
expenses to any Director who, at the request of the Board,
goes or resides abroad or renders any special or extra
services to the Company, which may be paid by way of a lump
sum, participation in profits or otherwise as the Board may
determine.
99 DIRECTORS' PENSIONS AND OTHER BENEFITS
99.1 The Board may establish, maintain, participate in or
contribute to or procure the establishment or maintenance
of, participation in or contribution to any pension,
superannuation, benevolent or life assurance fund, scheme or
arrangement (whether contributory or otherwise) for the
benefit of, and give or procure the giving of donations,
gratuities, pensions, allowances, benefits and emoluments
to, any persons who are or were at any time in the
employment or service of or who have at any time been
Directors of the Company or of any company which is or was a
member of the Group or any of their predecessors in business
(and for any member of his family, including a spouse or
former spouse or a person who is or was dependent on him).
Any Director or former Director shall be entitled to
participate in and retain for his own benefit any such
donations, gratuities, pensions, allowances, benefits or
emoluments. The Board may arrange for this to be done by the
Company either alone or in conjunction with any other
person.
99.2 Subject to the Statutes, the Board may establish and
maintain any employees' share scheme, share option or share
incentive scheme and establish and (if any such scheme so
provides) contribute to any scheme for the purchase by or
transfer, allotment or issue to trustees of shares in the
Company or its holding company to be held for the benefit of
employees (including Directors) of the Company and lend
money to such trustees or employees to enable them to
purchase such shares.
INTERESTS OF DIRECTORS
100 PERMITTED INTERESTS
Subject to the Statutes and to Article 101, a Director,
notwithstanding his office:
100.1 may hold any other office or place of profit with the
Company (except that of auditor) in conjunction with his
office of director and on such terms as to remuneration and
otherwise as the Board may arrange. Any Director may act by
himself or through his firm in a professional capacity for
the Company and he or his firm shall be entitled to
remuneration for professional services;
100.2 may enter into or otherwise be interested in a contract,
arrangement, transaction or proposal with the Company or in
which the Company is otherwise interested either in
connection with his tenure of an office or place of profit
and either as vendor, purchaser or otherwise;
100.3 may be a director or other officer of or employed by or a
party to a contract, transaction, arrangement or proposal
with or be otherwise interested in a company promoted by the
Company or in which the Company is otherwise interested;
100.4 unless otherwise agreed, is not liable to account to the
Company for any remuneration, profit or other benefit
received by him by virtue of such office, employment,
contract, arrangement, transaction or proposal and no such
contract, arrangement, transaction or proposal is avoided on
the grounds of any such interest or benefit.
101 DECLARATION OF DIRECTOR'S INTEREST
Without prejudice to the requirements of the Statutes, a
Director who is in any way, directly or indirectly,
interested in a contract, arrangement, transaction or
proposal with the Company shall declare the nature of his
interest at the meeting of the Board at which the question
of entering into the contract, arrangement, transaction or
proposal is first taken into consideration, if he knows his
24
interest then exists, or, in any other case, at the next
meeting of the Board after he knows that he is or has become
interested. For the purposes of this Article, a general
notice given to the Board by a Director to the effect that
he is to be regarded as having an interest (of the nature
and extent specified in the notice) in any contract,
arrangement, transaction or proposal in which a specified
person or class of persons is interested is a sufficient
declaration of interest in relation to that contract,
transaction, arrangement or proposal. An interest of which a
Director has no knowledge and of which it is unreasonable to
expect him to have knowledge is not treated as his interest.
102 LIMITATIONS ON VOTING OF INTERESTED DIRECTOR
Except as provided in this Article, a Director may not vote
in respect of any contract, arrangement, transaction or
proposal to which the Company is or is to be a party and in
which he is, to his knowledge, materially interested,
directly or indirectly, otherwise than by virtue of his
interest in shares or debentures or other securities of or
otherwise in or through the Company. This prohibition does
not apply to any resolution concerning any of the following
matters namely:
102.1 the giving to him of a guarantee, security or indemnity in
respect of money lent or obligations incurred by him or by
any other person at the request of or for the benefit of the
Company or any of its Subsidiary Undertakings;
102.2 the giving to a third party of a guarantee, security or
indemnity in respect of a debt or obligation of the Company
or any of its Subsidiary Undertakings for which he himself
has assumed responsibility, in whole or in part, under a
guarantee or indemnity or by the giving of security;
102.3 a contract, arrangement, transaction or proposal concerning
an offer of shares or debentures or other securities of or
by the Company or any of its Subsidiary Undertakings for
subscription or purchase in which offer he is or may be
entitled to participate as a holder of securities or in the
underwriting or sub-underwriting of which the Director is to
participate;
102.4 a contract, arrangement, transaction or proposal to which
the Company is or is to be a party concerning any other
company in which he is interested directly or indirectly and
whether as an officer or shareholder or otherwise ("RELEVANT
COMPANY"), if he is not, directly or indirectly, the holder
of or beneficially interested in one per cent. or more of a
class of equity share capital of the relevant company or of
the voting rights available to members of the relevant
company or able to cause one per cent or more of those
voting rights to be cast at his direction (and for the
purposes of this Article, shares held by a Director as bare
or custodian trustee and in which he has no beneficial
interest, shares comprised in a trust and in which the
Director's interest is in reversion or is in remainder, if
and so long as another person is entitled to receive the
income from the trust, and shares comprised in an authorised
unit trust scheme in which the Director is interested only
as a unit holder are disregarded);
102.5 a contract, arrangement, transaction or proposal concerning
the adoption, modification or operation of a pension,
superannuation or similar scheme or retirement, death or
disability benefits scheme or personal pension plan or
employees' share scheme under which he may benefit and which
has been approved by or is subject to and conditional on
approval by the Board of Inland Revenue for taxation
purposes or which does not accord to any Director as such
any privilege or benefit not accorded to the employees to
whom the scheme or fund relates;
102.6 a contract, arrangement, transaction or proposal for the
benefit of employees of the Company or any of its Subsidiary
Undertakings under which the Director benefits in a similar
manner to the employees and which does not accord to any
Director as such any privilege or benefit not accorded to
the employees to whom it relates;
102.7 a contract, arrangement, transaction or proposal concerning
the maintenance or purchase of any insurance policy for the
benefit of Directors or for the benefit of persons including
Directors.
25
103 RESTRICTIONS ON VOTING
A Director may not vote or be counted in the quorum on a
resolution of the Board or committee of the Board concerning
his own appointment (including fixing or varying the terms
of his appointment or its termination) as the holder of an
office or place of profit with the Company or any company in
which the Company is interested. Where proposals are under
consideration concerning the appointment (including fixing
or varying the terms of appointment or its termination) of 2
or more Directors to offices or places of profit with the
Company or any company in which the Company is interested,
such proposals shall be divided and a separate resolution
considered in relation to each Director. In such cases each
of the Directors concerned (if not otherwise debarred from
voting under the Articles) is entitled to vote (and be
counted in the quorum) in respect of each resolution except
that concerning his own appointment.
104 MATERIALITY OF DIRECTOR'S INTEREST
If any question arises at any meeting as to the materiality
of a Director's interest or as to the entitlement of any
Director to vote or be counted in a quorum and such question
is not resolved by his voluntarily agreeing to abstain from
voting or being counted in a quorum, the question shall be
decided by a resolution of the remaining Directors or
committee members present at the meeting and in the case of
an equality of votes the chairman (unless he is the Director
the materiality of whose interest or entitlement to vote is
in issue) shall have a second or casting vote which shall be
conclusive and binding.
105 DIRECTOR'S INTEREST EXTENDS TO CONNECTED PERSONS
For the purpose of Articles 100 to 105, the interest of a
person who is for the purposes of the Statutes connected
within the meaning of section 346 of the Act) with a
Director is treated as the interest of the Director and, in
relation to an alternate director, the interest of the
Director appointing him shall be treated as the interest of
the alternate director in addition to any interest which the
alternate director otherwise has. Articles 100 to 105 apply
to an alternate director as if he were a Director otherwise
appointed.
POWERS AND DUTIES OF DIRECTORS
106 POWERS OF THE BOARD
Subject to the Statutes, the memorandum of association of
the Company and the Articles and to directions given by the
Company in general meeting, the business of the Company
shall be managed by the Board, which may exercise all the
powers of the Company. No alteration of the memorandum of
association or of the Articles and no direction made by the
Company in general meeting invalidates any prior act of the
Board which would have been valid if the alteration or
direction had not been made. The general powers given by
this Article shall not be limited by any special authority
or power given to the Directors by any other Article.
107 DELEGATION TO COMMITTEES
The Board may delegate any of the powers, authorities and
discretions exercisable by the Board for such time and on
such terms and conditions as it thinks fit to a committee
consisting of one or more Directors and (if it thinks fit)
one or more other persons, but only if a majority of the
members of the committee are Directors or alternate
directors. The Board may grant the power to sub-delegate,
may revoke or alter the terms and conditions of the
delegation or discharge the committee in whole or in part
and may retain or exclude the right of the Board to exercise
the delegated powers, authorities or discretions
collaterally with the committee. Where a provision of the
Articles refers to the exercise of a power, authority or
discretion by the Board and that power,
26
authority or discretion has been delegated by the Board to a
committee, the provision shall be construed as permitting
the exercise of the power, authority or discretion by the
committee.
108 LOCAL MANAGEMENT
The Board may establish local or divisional boards or
agencies for managing the affairs of the Company in a
specified locality and may appoint any persons to be members
of a local or divisional board or agency and may fix their
remuneration and may delegate to any local or divisional
board or agency any of the powers, authorities and
discretions exercisable by the Board for such time and on
such terms and conditions as it thinks fit. The Board may
grant the power to sub-delegate, may revoke or alter the
terms and conditions of the appointment or delegation and
may retain or exclude the right of the Board to exercise the
delegated powers, authorities or discretions collaterally
with the local or divisional board or agency and may
authorise the members of any local or divisional board or
agency (or any of them) to fill any vacancy and to act
notwithstanding any vacancy. Subject to any terms and
conditions imposed by the Board, the proceedings of a local
or divisional board or agency with 2 or more members are
governed by those Articles that regulate the proceedings of
the Board, so far as applicable.
109 POWER OF ATTORNEY
The Board may by power of attorney or otherwise appoint any
company, firm or person to be the agent or attorney of the
Company and may delegate to that company, firm or person any
of the powers, authorities and discretions exercisable by
the Board for such purposes and for such time and on such
terms and conditions as it thinks fit. The Board may grant
the power to sub-delegate, may revoke or alter the terms and
conditions of the appointment or delegation and may retain
or exclude the right of the Board to exercise the delegated
powers, authorities or discretions collaterally with the
attorney or agent.
110 EXERCISE OF VOTING POWERS
The Board may exercise or cause to be exercised the voting
powers conferred by shares in the capital of another company
held or owned by the Company, or a power of appointment to
be exercised by the Company, in any manner it thinks fit
(including the exercise of such power in favour of the
appointment of a Director as an officer or employee of that
company or in favour of the payment of remuneration to the
officers or employees of that company.
BORROWING POWERS
111 BORROWING POWERS
The Directors may exercise all the powers of the Company to
borrow money, and to mortgage or charge all or any part of
its undertaking, property and assets (both present and
future), including its uncalled capital and, subject to the
Statutes, to issue Debentures and other securities, whether
outright or as collateral security, for any debt, liability
or obligation of the Company or of any third party.
PROCEEDINGS OF THE BOARD
112 BOARD MEETINGS
The Board may meet for the despatch of business, adjourn and
otherwise regulate its meetings as it thinks fit.
113 QUORUM
The quorum necessary for the transaction of business may be
decided by the Board and until decided otherwise is 2
persons present in person or by alternate director.
27
114 NOTICE OF BOARD MEETINGS
A Director may, and on the request of a Director the
Secretary shall, at any time summon a meeting of the Board.
It shall be necessary to give notice of a meeting of the
Board to all the Directors and notice is deemed to be duly
given to a Director if it is given to him personally or by
word of mouth or sent to him at his last known address or
another address given by him to the Company for that
purpose. A Director may waive the requirement that notice be
given to him of a Board meeting either prospectively or
retrospectively. It shall not be necessary to give notice of
a meeting of the Board to any Director absent from the
United Kingdom save in any case where such absent Director
leaves an address or facsimile number (either inside or
outside the United Kingdom) in which case a telegram sent to
that address or a message sent to that facsimile number
shall be deemed to constitute notice to the Director at the
time when it is dispatched or sent. Neither the accidental
failure to give notice of a meeting of the Board to any
Director nor the non-receipt in any case of such notice if
given shall invalidate the meeting or any resolution passed
or business transacted at the meeting.
115 VOTING
Questions arising at any meeting of the Board shall be
decided by a majority of votes. In the case of an equality
of votes, the chairman shall have a second or casting vote.
116 CHAIRMAN OF THE BOARD
The Board may elect a chairman or deputy chairman, who shall
preside at its meetings, but if no such chairman or deputy
chairman is elected, or if at any meeting neither the
chairman nor deputy chairman is present within 5 minutes
after the time fixed for the start of the meeting, the Board
shall choose one of its number to be chairman of such
meeting. The Board may decide the period for which he is or
they are to hold office and may at any time remove him or
them from office. A chairman or deputy chairman may hold
executive office or employment with the Company.
117 PROCEEDINGS OF A COMMITTEE
117.1 Proceedings of a committee of the Board shall be conducted
in accordance with any regulations that may from time to
time be imposed upon it by the Board. Subject to those
regulations and this Article, proceedings of a committee
shall be governed by the provisions of these Articles
regulating the proceedings of the Board, so far as
applicable.
117.2 Where the Board resolves to delegate any of its powers,
authorities and discretions to a committee of one or more
unnamed Directors, notice of a meeting of that committee
need only be given to the Director or Directors who form the
committee.
118 VALIDITY OF PROCEEDINGS OF BOARD OR COMMITTEE
All acts done in good faith by any meeting of the Board or
of a committee of the Board or by any person acting as a
Director, alternate director or committee are,
notwithstanding that it is afterwards discovered that there
was some defect in the appointment of any Director or person
acting or that they or any of them were disqualified from
holding office or had ceased to hold office or were not
entitled to vote, as valid as if every such person had been
duly appointed and was qualified to be and had continued to
be a Director, alternate director or member of a committee
and entitled to vote.
119 MINUTES OF PROCEEDINGS
The Board shall cause minutes to be made of all appointments
of officers and committees made by the Board and of any
remuneration fixed by the Board and the names of the
Directors present at all meetings of the Board and
committees of the Board, the Company or the holders of a
class of shares or debentures and all orders, resolutions
and proceedings of such meetings and any such
28
minutes of any meeting, if purporting to be signed by the
chairman of the meeting, or by the chairman of the next
succeeding meeting shall be conclusive evidence without any
further proof of the matters stated in them.
120 PARTICIPATION BY TELEPHONE
A Director or his alternate director may participate in a
meeting of the Board or of any committee of the Board
through the medium of conference telephone or similar form
of communication equipment notwithstanding that the
Directors or committee members present may not all be
meeting in one particular place if all persons participating
in the meeting are able to hear and speak to each other
throughout the meeting. A person participating in this way
is deemed to be present in person at the meeting and is
counted in a quorum and entitled to vote. The meeting is
deemed to take place where the largest group of those
participating is assembled or, if there is no such group,
where the chairman of the meeting then is.
121 BOARD RESOLUTION IN WRITING
A resolution in writing signed by or on behalf of all the
Directors entitled to receive notice of a Board meeting and
not being less than a quorum or by all members of a
committee of the Board is as valid and effective as a
resolution passed at a Board meeting (or committee, as the
case may be) and may consist of several documents in the
same form each duly signed by or on behalf of one or more of
the Directors (or members of the committee) and any such
resolution in writing need not be signed by an alternate
director if it is signed by the Director appointing him and
a resolution signed by an alternate director need not be
signed by the Director appointing him.
122 NUMBER OF DIRECTORS LESS THAN MINIMUM
If the number of Directors is reduced below the minimum
number fixed by these Articles or decided by the Company by
ordinary resolution, the continuing Directors or Director
may act only for the purpose of appointing an additional
Director or Directors to make up that minimum or convening a
general meeting of the Company for the purpose of making
such appointment. If no Director or Directors is or are able
or willing to act, 2 Members may convene a general meeting
for the purpose of appointing Directors. An additional
Director appointed in this way holds office (subject to the
Articles) only until the dissolution of the next annual
general meeting after his appointment unless he is
reappointed during the meeting.
ALTERNATE DIRECTORS
123 APPOINTMENT
A Director (other than an alternate director) may, by notice
delivered to the Secretary at the Office, or in any other
manner approved by the Board, appoint another Director or
any other person approved by the Board and willing to act to
be his alternate director. No appointment of an alternate
director who is not already a Director is effective until
his consent to act as a Director in the form prescribed by
the Statutes is received at the Office. An alternate
director need not be a Member and is not counted in
reckoning the number of Directors for the purpose of
Article 80.
124 PARTICIPATION IN BOARD MEETINGS
An alternate director is (subject to his giving to the
Company an address at which notice may be served upon him)
entitled to notice of meetings of the Board and all
committees of the Board of which the Director appointing him
is a member and to attend and vote as a Director at any such
meeting at which the Director appointing him is absent and
to exercise all the powers, rights, duties and authorities
of the Director appointing him. A Director acting as
alternate director has a separate vote at meetings of the
Board and committees of the Board for each Director for whom
29
he acts as alternate director but he counts as only one for
the purpose of determining whether a quorum is present.
125 REMUNERATION AND EXPENSES
The fee payable to an alternate director shall be payable
out of the fee payable to the Director appointing him and
shall consist of such portion (if any) of the fee as shall
be agreed between the alternate director and the Director
appointing him. The Company shall, however, repay to an
alternate director expenses incurred by him in the
performance of his duties if the Company would have been
required to repay the expenses to him had he been a
Director.
126 REVOCATION OF APPOINTMENT
A Director may, by notice delivered to the Secretary at the
Office, revoke the appointment of his alternate director. If
a Director dies or ceases to hold the office of Director,
the appointment of his alternate director ceases
automatically. If a Director retires at any meeting (whether
by rotation or otherwise) but is reappointed by the meeting
at which such retirement took effect, any appointment made
by him pursuant to this Article which was in force
immediately prior to his retirement shall continue to
operate after his reappointment as if he had not so retired.
The appointment of an alternate director ceases on the
happening of an event which, if he were a Director otherwise
appointed, would cause him to vacate office.
127 RESPONSIBILITY
An alternate director is not deemed to be the agent of the
Director appointing him but is responsible for his own acts
and defaults and is deemed to be an officer of the Company.
ASSOCIATE DIRECTORS
128 APPOINTMENT OF ASSOCIATE DIRECTOR
The Board may appoint any person, not being a Director, to
be an associate director of the Company or to an office or
employment having a designation or title including the word
"director" or may attach to an existing office or employment
that designation or title and may terminate the appointment
or use of that designation or title.
129 EFFECT OF APPOINTMENT
The appointment of a person to be an associate director or
the inclusion of the word "director" in the designation or
title of an office or employment shall not, save as
otherwise agreed between him and the Company, affect the
terms and conditions of his employment and shall not imply
that the person has power to act as a Director or is
entitled to receive notice of or attend or vote at meetings
of the Directors and he is not deemed to be a Director for
any of the purposes of these Articles.
130 POWERS, DUTIES AND REMUNERATION
The powers, duties and remuneration of an associate director
or of any person having a designation or title including the
word "director" shall be determined by the Board and the
Board shall have the right to enter into any contract on
behalf of the Company or transact any business of any
description without the knowledge or approval of such
persons, except that no act shall be done that would impose
any personal liability on any or all of such persons except
with his or their knowledge and consent.
30
SEALS
131 APPLICATION OF SEALS
A seal may be used only by the authority of a resolution of
the Board or a committee of the Board. The Board may decide
who will sign an instrument to which a seal is affixed (or,
in the case of a share certificate, on which the seal may be
printed) either generally or in relation to a particular
instrument or type of instrument. The Board may also decide,
either generally or in a particular case, that a signature
may be dispensed with or applied by mechanical means.
132 SIGNING OF SEALED DOCUMENTS
Unless otherwise decided by the Board, certificates for
shares or debentures or other securities (subject to the
provisions of the relevant instrument) need not be signed
or, if signed, a signature may be applied by mechanical or
other means or may be printed and every other instrument to
which a seal is affixed shall be signed by 2 Directors or
one Director and the Secretary.
133 SEAL FOR USE ABROAD
The Board may exercise all the powers of the Company
conferred by the Statutes with regard to having an official
seal for use abroad.
SECRETARY
134 APPOINTMENT AND REMOVAL OF SECRETARY
Subject to the Statutes, the Board shall appoint and may
remove a Secretary or joint secretaries and may appoint and
remove one or more assistant or deputy secretaries on such
terms and conditions as it thinks fit.
135 AUTHORITY OF OTHER PERSON TO ACT AS SECRETARY
Anything by the Statutes or these Articles required or
authorised to be done by or to the Secretary may, if the
office is vacant or there is no Secretary capable of acting,
be done by or to any joint assistant or deputy secretary or,
if there is no joint, assistant or deputy secretary capable
of acting, by or to any officer of the Company authorised
generally or specifically in that behalf by the Board. Any
provision of the Statutes or of the Articles requiring or
authorising a thing to be done by or to a Director and the
Secretary is not satisfied by its being done by or to the
same person acting both as Director and as, or in the place
of, the Secretary.
136 AUTHENTIFICATION OF DOCUMENTS
Any Director or the Secretary or any person appointed by the
Board for the purpose shall have power to authenticate any
documents affecting the constitution of the Company and any
resolutions passed by the Company or holders of a class of
shares or the Board or any committee of the Board and any
books, records, documents and accounts relating to the
business of the Company and to certify copies or extracts as
true copies or extracts.
REGISTERS
137 REGISTER OF DIRECTORS' INTERESTS
The register of Directors' interests shall be kept in
accordance with the Statutes and shall be open to the
inspection of any Member or of any other person between the
hours of 10am and noon on each day during which the same is
bound to be open for inspection pursuant to the Statutes.
The said register shall be produced at the commencement of
each annual general meeting and shall remain open and
accessible during the continuance of the meeting to any
person attending such meeting.
31
138 OTHER REGISTERS
The register of Directors and Secretaries, the register of
charges, the Register, the register of interests in shares,
any overseas branch register and all other associated
registers and indices shall be kept in accordance with the
Statutes and the fee to be paid by a person other than a
creditor or Member for each inspection of any register is
the maximum sum prescribed by the Statutes or, failing
which, decided by the Board.
DIVIDENDS
139 RECORD DATES
Notwithstanding any other provision of the Articles, but
subject to the Statutes and any preferential or other
special rights attached to shares, the Company or the Board
may fix any date as the record date for a dividend,
distribution, allotment or issue. The record date may be on
or at any time before or after a date on which the dividend,
distribution, allotment or issue is declared, made or paid.
140 ENTITLEMENT TO DIVIDENDS
Except as otherwise provided by the rights attached to
shares, all dividends shall be declared and paid according
to the amounts paid up on the shares in respect of which the
dividend is declared and paid. Dividends shall be
apportioned and paid proportionately to the amounts paid up
on the shares during any portion or portions of the period
in respect of which the dividend is paid. If any share is
issued on terms that it shall rank for dividend as from a
particular date then it shall rank for dividend as from that
date. No amount paid up on a share in advance of a call may
be treated as paid up for the purpose of this Article.
141 DECLARATION OF DIVIDENDS
Subject to the Statutes and the Articles, the Company may by
ordinary resolution declare a dividend to be paid to the
Members according to their respective rights and interests.
No dividend shall exceed the amount recommended by the
Board.
142 INTERIM DIVIDENDS
Subject to the Statutes, the Board may declare and pay to
the Members such interim dividends (including a dividend
payable at a fixed rate) as appear to the Board to be
justified by the profits of the Company available for
distribution. If the share capital of the Company is divided
into different classes, the Board may pay interim dividends
in respect of shares which rank after shares conferring
preferred rights, unless at the time of payment a
preferential dividend is in arrears. If the Directors act in
good faith they shall not incur any liability to the holders
of shares conferring preferred rights for any loss that they
may suffer by reason of the lawful payment of an interim
dividend on any shares ranking after those with preferred
rights.
143 PAYMENT OF DIVIDENDS IN KIND
The Board may, with the prior authority of an ordinary
resolution of the Company, direct that dividends may be
satisfied in whole or in part by the distribution of
specific assets including paid up shares, debentures or
other securities of any other company. The Board may make
all such valuations, adjustments and arrangements and issue
all certificates or documents of title as may seem to it to
be expedient with a view to facilitating the distribution
and may vest assets in trustees on trust for the persons
entitled to the dividend as may seem to the Board to be
expedient.
32
144 METHOD OF PAYMENT
The Company may pay any dividend, interest or other amount
payable in cash in respect of any share by cheque, dividend
warrant or money order or by direct debit or a bank or other
funds transfer system or by such other method as the holder
or joint holders of the share in respect of which the
payment is made may in writing direct. In respect of
uncertificated shares, where the Company is authorised to do
so by or on behalf of the holder or joint holders in such
manner as the Company shall from time to time consider
sufficient, the Company may also pay any such dividend,
interest or other amount by means of the relevant system
concerned (subject always to the facilities and requirements
of that relevant system). Any joint holder may give an
effective receipt for a dividend, interest or other amount
paid in respect of the share. The Company may send a cheque,
warrant or order by post (1) in the case of a sole holder,
to his registered address or (2) in the case of joint
holders, to the registered address of the person whose name
stands first in the Register or (3) in the case of a person
or persons entitled by transmission to a share, as if it
were a notice given in accordance with Article 160 or
(4) in any case, to a person and address that the person or
persons entitled to the payment may in writing direct.
Payment of the cheque, warrant or order, the collection of
funds from or transfer of funds by a bank in accordance with
such direct debit or bank or other transfer or, in respect
of shares in uncertificated form, the making of payment in
accordance with the facilities and requirements of the
relevant system concerned shall be a good discharge to the
Company. Every cheque, warrant or order is sent at the risk
of the person entitled to the payment and shall be made
payable to or to the order of the person or persons entitled
or to such other person as the holder or joint holders may
in writing direct. Every such payment made by direct debit
or a bank or other funds transfer or by another method at
the direction of the holder or joint holders shall be made
to the holder or joint holders or to or through such other
person as the holder or joint holders may in writing direct.
In respect of uncertificated shares, every such payment made
by means of the relevant system concerned shall be made in
such manner as may be consistent with the facilities and
requirements of the relevant system concerned. Without
prejudice to the generality of the foregoing, in respect of
shares in uncertificated form, such payment may include the
sending by the Company or by any person on its behalf of an
instruction to the Operator of the relevant system to credit
the cash memorandum account of the holder or joint holders
or, if permitted by the Company, of such person as the
holder or joint holders may in writing direct. The Company
shall not be responsible for any loss of any such cheque,
warrant or order and any payment made by direct debit, bank
or other funds transfer system or such other method shall be
at the sole risk of the holder or joint holders. Without
prejudice to the generality of the foregoing, if any such
cheque, warrant or order has or shall be alleged to have
been lost, stolen or destroyed, the Directors may, on
request of the person entitled to it, issue a replacement
cheque, warrant or order subject to 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.
145 CESSATION OF PAYMENT OF DIVIDEND
145.1 If a cheque, warrant or order in respect of a dividend, or
other amount payable in respect of a share, is returned
undelivered or left uncashed or transfer made by a bank or
other funds transfer systems is not accepted on
145.1.1 2 consecutive occasions; or
145.1.2 one occasion and the Board, on making reasonable enquiries,
has failed to establish any new address or account of the
person concerned
then the Board may determine that the Company shall cease
sending or transferring a dividend, or other amount payable
in respect of that share, to the person concerned until he
notifies the Company of an address or account to be used for
that purpose.
33
146 DIVIDENDS DO NOT BEAR INTEREST
No unpaid dividend, or other amount payable in respect of a
share, bears interest as against the Company unless
otherwise provided by the rights attached to the share.
147 DEDUCTION FROM DIVIDEND
The Board may deduct from any dividend or other amounts
payable to a person in respect of a share, either alone or
jointly with any other person, all amounts due from him,
either alone or jointly with any other person, to the
Company on account of calls or otherwise in respect of a
share.
148 UNCLAIMED DIVIDENDS
All unclaimed dividends, interest or other amounts payable
by the Company in respect of a share may be invested or
otherwise made use of by the Board for the benefit of the
Company until claimed and the payment of any unclaimed
dividend, interest or other amount payable by the Company in
respect of a share into a separate account or the investment
of it does not constitute the Company a trustee in respect
of it. Any dividend which has remained unclaimed for a
period of 12 years from the date it became due for payment
is forfeited and ceases to remain owing by the Company.
149 DIVIDEND MAY BE WITHHELD
Without prejudice to Articles 42 to 45, the Board may
withhold payment of a dividend (or part of a dividend)
payable to a person entitled by transmission to a share
until he has provided any evidence of his right that the
Board may reasonably require.
150 PAYMENT OF SCRIP DIVIDENDS
150.1 Subject to the Statutes, but without prejudice to
Article 42, the Board may, with the prior authority of an
ordinary resolution of the Company, allot to those holders
of a particular class of shares who have elected to receive
them further shares of that class or ordinary shares, in
either case paid up ("new shares"), instead of cash in
respect of all or part of a dividend or dividends specified
by the resolution, subject to any exclusions, restrictions
or other arrangements the Board may in its absolute
discretion deem necessary or expedient to deal with legal or
practical problems under the laws of, or the requirements of
a recognised regulatory body or a stock exchange in, any
territory.
150.2 Where a resolution under Article 151.1 is to be proposed at
a general meeting and the resolution relates in whole or in
part to a dividend to be declared at that meeting, then the
resolution declaring the dividend is deemed to take effect
at the end of that meeting.
150.3 A resolution under Article 151.1 may relate to a particular
dividend or to all or any dividends declared or paid within
a specified period, but that period may not end later than
the beginning of the fifth annual general meeting following
the date of the meeting at which the resolution is passed.
150.4 The Board may make any provision it considers appropriate in
relation to an allotment made pursuant to this Article,
including but not limited to:
150.4.1 the giving of notice to holders of the right of election
offered to them;
150.4.2 the provision of forms of election (whether in respect of a
particular dividend or dividends generally);
150.4.3 determination of the procedure for making and revoking
elections;
150.4.4 the place at which, and the latest time by which, forms of
election and other relevant documents must be lodged in
order to be effective; and
34
150.4.5 the disregarding or rounding up or down or carrying forward
of fractional entitlements, in whole or in part, or the
accrual of the benefit of fractional entitlements to the
Company (rather than to the Members concerned).
150.5 The dividend (or that part of the dividend in respect of
which a right of election has been offered) is not declared
or payable on shares in respect of which an election has
been duly made ("ELECTED SHARES"); instead new shares are
allotted to the holders of the elected shares on the basis
of allotment calculated as in Article 151.4. For that
purpose, the Board may resolve to capitalise out of amounts
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, a
sum equal to the aggregate nominal amount of the new shares
to be allotted and apply it in paying up in full the
appropriate number of new shares for allotment and
distribution to the holders of the elected shares. A
resolution of the Board capitalising part of the reserves
has the same effect as if the capitalisation had been
declared by ordinary resolution of the Company pursuant to
Article 153. In relation to the capitalisation the Board may
exercise all the powers conferred on it by Article 153
without an ordinary resolution of the Company.
150.6 The new shares will rank equally with each other and with
every other paid share of the same class in issue on the
record date for the dividend in respect of which the right
of election has been offered, but they will not rank for a
dividend or other distribution or entitlement which has been
declared or paid by reference to that record date.
RESERVES
151 PROVISION OF RESERVES
The Board may, before recommending any dividend, set aside
out of the profits of the Company (including any premiums
received upon the issue of debentures or other securities or
rights of the Company) such amounts as it thinks proper as a
reserve fund or funds which shall at the discretion of the
Board be applicable for any purpose for which the profits of
the Company may lawfully be applied. The Board may employ
the amounts in the business of the Company or invest the
same in such securities (other than the shares of the
Company or its holding company) as it may select. The Board
may also from time to time carry forward such amounts as it
may deem expedient not to distribute.
152 CAPITALISATION OF PROFITS AND RESERVES
152.1 Subject to the Statutes, the Board may, with the authority
of an ordinary resolution of the Company:
152.1.1 resolve to capitalise an amount standing to the credit of
reserves or to the credit of the profit and loss account and
whether or not available for distribution and appropriate
the sum resolved to be capitalised to the Members in
proportion to the nominal amount of ordinary shares (whether
or not paid up) held by them respectively and to apply that
sum on their behalf either in or towards paying up the
amounts (if any) for the time being unpaid on any shares
held by such Members respectively or in paying up in full
unissued shares or debentures of the Company of a nominal
amount equal to such sum and allot such shares or
debentures, paid up, to and amongst such Members in those
proportions or partly in one way and partly in the other.
Any sums standing to the credit of a share premium account
and a capital redemption reserve and profits which are not
available for distribution may, for the purposes of this
Article, only be applied in the paying up of unissued shares
to be allotted to Members credited as paid up;
152.1.2 make any arrangements it thinks fit to resolve a difficulty
arising in the distribution of a capitalised reserve and, in
particular, where shares or debentures become distributable
in
35
fractions, the Board may deal with the fractions as it
thinks fit, including by the issue of certificates in
respect of fractional entitlements, disregarding fractions
or selling shares or debentures representing the fractions
to a person for the best price reasonably obtainable and
distributing the net proceeds of the sale in due proportion
amongst the Members (except that if the amount due to a
Member is less than L3, or such other sum as the Board may
decide, the sum may be retained for the benefit of the
Company);
152.1.3 authorise a person to enter into, on behalf of all the
Members concerned, an agreement with the Company providing
for either the allotment to the Members, paid up, of shares
or debentures to which they may be entitled on the
capitalisation or the payment by the Company on behalf of
the Members, by applying their respective proportions of the
reserves resolved to be capitalised, of the amounts
remaining unpaid on their existing shares. An agreement
entered into under this Article is effective and binding on
all affected Members; and
152.1.4 generally do all acts and things required to give effect to
the resolution.
ACCOUNTS
153 INSPECTION OF ACCOUNTS
153.1 The Board shall ensure that proper accounts and accounting
records are kept in accordance with the Statutes. The books
of account and accounting records shall be kept at the
Office or, subject to the Statutes, at such other place or
places as the Board thinks fit and shall be open to the
inspection of any Director or other officer during business
hours.
153.2 No Member (not being a Director or other officer) has any
right of inspecting any account or book or document of the
Company, except as conferred by the Statutes or authorised
by the Board or by an ordinary resolution of the Company.
154 PREPARATION OF ACCOUNTS
The Board shall, in accordance with the Statutes, cause to
be prepared and to be laid before the Company in general
meeting such profit and loss accounts, balance sheets, Group
accounts (if any) and reports as are referred to in the
Statutes.
155 ACCOUNTS SENT TO THE MEMBERS
155.1 Subject to the Statutes, either:
155.1.1 a printed copy of every Directors' report and Auditors'
report accompanied by the Company's annual accounts and
every document required by law to be attached to them; or
155.1.2 where permitted by the Statutes, a summary financial
statement derived from the Company's annual accounts
prepared in accordance with the Statutes
shall not less than 21 clear days before the date of the
meeting be delivered or sent to every Member (whether or not
entitled to receive notices of general meetings) and to
every holder of debentures of the Company (whether or not
entitled to receive notices of general meetings) and to
every other person who is entitled to receive notices of
general meetings from the Company under the provisions of
the Statutes or of these Articles. This Article does not
require a copy of such documents to be sent or delivered to
any Member or holder of debentures of whose address the
Company is not aware nor to more than one of the joint
holders of any shares or debentures; but any Member or
debenture holder to whom a copy of these documents has not
been sent shall be entitled to receive a copy free of charge
on application at the Office.
36
155.2 The accidental omission to deliver or send a copy of any
document required to be delivered or sent to any person
pursuant to this Article or the non-receipt of any document
by any person entitled to receive it does not invalidate any
such document or the proceedings at any general meeting.
UNTRACED SHAREHOLDERS
156 POWER OF SALE
156.1 The Company is entitled to sell at the best price reasonably
obtainable any share of a Member or any share to which a
person is entitled by transmission if:
156.1.1 during a period of 12 years prior to the date of the
publication of the advertisements referred to in
Article 156.1.2 (or, if published on different dates, the
earlier date) at least 3 dividends (whether interim or
final) in respect of the share in question have been paid
and all warrants, orders and cheques in respect of the share
sent in the manner authorised by these Articles have been
returned undelivered or remained uncashed and no
communication has been received by the Company from the
Member or person entitled by transmission; and
156.1.2 the Company, on expiry of the period of 12 years, has
inserted advertisements in a national daily newspaper and in
a newspaper circulating in the area of the registered
address of the Member, or other person entitled by
transmission, appearing in the Register or the last known
address given by the Member or other person, giving notice
of its intention to sell the share; and
156.1.3 during the period of 3 months following the publication of
the advertisements (or, if published on different dates, the
later of the 2 advertisements) and prior to the date of sale
the Company has not received any communication from the
Member or person entitled by transmission; and
156.1.4 notice has been given to the London Stock Exchange of its
intention to sell the share.
156.2 If, during the period of 12 years or a further period ending
on the date when all the requirements of Article 156.1 have
been satisfied, an additional share has been issued in right
of that held at the beginning of, or previously so issued
during, those periods and all the requirements of
Article 156.1 are satisfied in respect of the additional
share, the Company is entitled to sell the additional share.
156.3 To give effect to any such sale, the Board may:
156.3.1 in relation to certificated shares, appoint any person to
execute as transferor an instrument of transfer of the
shares to, or in accordance with the directions of, the
purchaser and such instrument of transfer shall be as
effective as if it had been executed by the holder of, or
person entitled by transmission to, such shares; and
156.3.2 in relation to uncertificated shares, exercise any of the
Company's powers under Article 13.3 to effect the transfer
of the shares to, or in accordance with the directions of,
the purchaser and the exercise of such powers shall be as
effective as if exercised by the registered holder of, or
person entitled by transmission to, such shares
and the transferee is not bound to see to the application of
the purchase money and the title of the transferee is not
affected by any irregularity or invalidity in the
proceedings relating to the sale.
157 APPLICATION OF PROCEEDS OF SALE
The net proceeds of sale shall belong to the Company which
shall be obliged to account to the Member or other person
entitled by transmission for an amount equal to such
proceeds and shall enter the name of such Member or other
person in the books of the Company as a creditor for such
37
amount. No trust is created and no interest is payable in
respect of the debt and the Company is not required to
account for any money earned on the net proceeds, which may
be employed in the business of the Company or invested as
the Directors think fit.
NOTICES
158 NOTICES IN WRITING
A notice to be given to or by the Articles shall be in
writing except that a notice convening a meeting of the
Board or a committee of the Board need not be in writing.
159 SERVICE OF NOTICES
A notice or other document may be given to a Member by the
Company personally or by letter. Any letter shall be sent by
post stamped first class and addressed to such Member at the
address in the Register or shall be left at that address (or
at another address notified for the purpose) in an envelope
addressed to that Member.
160 NOTICE TO JOINT HOLDERS
In the case of joint holders of a share, a notice or other
document shall be given to whichever of them is named first
in the Register and notice given in this way is sufficient
notice to all the joint holders.
161 ADDRESS OUTSIDE THE UNITED KINGDOM
Subject to the Statutes, if any Member (or, in the case of
joint holders, the person first named in the Register) has a
registered address not within the United Kingdom he is
entitled to have notices given to him at that address.
162 DEEMED NOTICE
A Member present in person or by proxy at a general meeting
or a meeting of the holders of a class of shares is deemed
to have received due notice of the meeting and, where
required, of the purposes for which it was called.
163 EVIDENCE OF SERVICE
163.1 Any notice or other document addressed to a Member at his
registered address or address for service in the United
Kingdom is deemed to be received, if personally delivered,
at the time of delivery or, if sent by first class post, on
the Business Day after the letter is posted or, if sent by
second class post, on the second Business Day after the
letter is posted. In proving service it is sufficient to
prove that the letter was properly addressed and, if sent by
post, stamped and posted. A notice or document left at a
registered address for service in the United Kingdom is
deemed to be received on the day it is left.
163.2 Any notice or other document addressed to a Member at his
registered address or address for service outside the United
Kingdom is deemed to be received, if personally delivered,
at the time of delivery or, if sent by airmail, on the
second Business Day after the letter is posted. In proving
service it is sufficient to prove that the letter was
properly addressed and, if sent by post, stamped and posted.
164 NOTICE BINDING ON TRANSFEREES ETC.
A person who becomes entitled by transmission to a share,
transfer or otherwise is bound by a notice in respect of
that share (other than a notice served by the Company under
section 212 of the Act) which, before his name is entered in
the Register, has been properly served on a person from whom
he derives his title.
38
165 NOTICE IN CASE OF ENTITLEMENT BY TRANSMISSION
Where a person is entitled by transmission to a share, the
Company may give a notice or other document to that person
as if he were the holder of a share by addressing it to him
by name or by the title of representative of the deceased or
trustee of the bankrupt Member (or by similar designation)
at an address in the United Kingdom supplied for that
purpose by the person claiming to be entitled by
transmission. Until an address has been supplied, a notice
or other document may be given in any manner in which it
might have been given if the death or bankruptcy or other
event had not occurred. The giving of notice in accordance
with this Article is sufficient notice to all other persons
interested in the share.
166 NOTICE BY ADVERTISEMENT
If by reason of the suspension or curtailment of postal
services in the United Kingdom the Company is unable
effectively to convene a general meeting by notices sent
through the post the Board may, if it thinks fit and as an
alternative to any other method of service permitted by the
Articles, resolve to convene a general meeting by a notice
advertised in at least one national newspaper and such
notice shall be deemed to have been duly received at noon on
the day when the advertisement appears. In any such case the
Company shall send confirmatory copies of the notice by post
if at least 5 days prior to the meeting the posting of
notices again becomes practicable.
WINDING UP AND INDEMNITY
167 WINDING UP
If the Company shall be wound up (whether the liquidation is
voluntary, under supervision or by the Court) the liquidator
may, with the authority of an extraordinary resolution and
any sanction required by law, divide among the Members in
kind the whole or any part of the assets of the Company and
whether or not the assets consist of property of one kind or
of different kinds and may for this purpose set such value
as he deems fair on any class or classes of property and may
determine on the basis of that valuation and in accordance
with the then existing rights of Members how such division
shall be carried out as between the Members or different
classes of Members. The liquidator may, with the same
authority, vest any part of the assets in trustees upon such
trusts for the benefit of Members as the liquidator shall
think fit but so that no Member shall be compelled to accept
any asset in respect of which there is a liability or
potential liability.
168 INDEMNITY
168.1 Subject to the Statutes and without prejudice to any
indemnity to which he may otherwise be entitled, every
Director, Secretary or manager of the Company shall be
entitled to be indemnified by the Company against all costs,
charges, losses, expenses and liabilities incurred by him in
the execution and discharge of his duties or the exercise of
his powers, authorities and discretions, including any
liability incurred by him in defending any proceedings,
civil or criminal, which relate to anything done or omitted
or alleged to have been done or omitted by him as an officer
or employee of the Company and in which judgment is given in
his favour or the proceedings are otherwise disposed of
without any finding or admission of any material breach of
duty on his part or in which he is acquitted or in
connection with any application in which relief is granted
to him by the court from liability in respect of negligence,
default, breach of duty or breach of trust, in relation to
the affairs of the Company.
168.2 Subject to the Statutes, the Board may exercise all the
powers of the Company to purchase and maintain insurance for
the benefit of a person who is an officer or employee, or
former officer or former employee, of the Company or a
Subsidiary Undertaking or in which the Company has an
interest, direct or indirect, or who is or was a trustee of
a retirement benefits scheme or another trust in which an
officer or employee or former officer or former employee is
or has been interested indemnifying him against any
liability for negligence, default, breach of duty or breach
of trust or any other liability which may lawfully be
insured against by the Company.
39
APPENDIX II
DELAWARE GENERAL CORPORATION LAW
SECTION 262--APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of stock
on the date of the making of a demand pursuant to subsection (d) of this section
with respect to such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise complied with
subsection (d) of this section and who has neither voted in favor of the merger
or consolidation nor consented thereto in writing pursuant to Section 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Section 251 (other than a merger effected pursuant to
Section 251(g) of this title), Section 252, Section 254, Section 257,
Section258, Section 263 or Section 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no appraisal
rights shall be available for any shares of stock of the constituent
corporation surviving a merger if the merger did not require for its
approval the vote of the stockholders of the surviving corporation as
provided in subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required by
the terms of an agreement of merger or consolidation pursuant to
Sections 251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Section 253 of this title is not owned by
the parent corporation immediately prior to the merger, appraisal rights
shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections
(d) and (e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are available
pursuant to subsection (b) or (c) hereof that appraisal rights are available
for any or all of the shares of the constituent corporations, and shall
include in such notice a copy of this section. Each stockholder electing to
demand the appraisal of such stockholder's shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation, a
written demand for appraisal of such stockholder's shares. Such demand will
be sufficient if it reasonably informs the corporation of the identity of
the stockholder and that the stockholder intends thereby to demand the
appraisal of such stockholder's shares. A proxy or vote against the merger
or consolidation shall not constitute such a demand. A stockholder electing
to take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to Section 228
or Section 253 of this title, each consitutent corporation, either before
the effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of stock
of such constitutent corporation who are entitled to appraisal rights of the
approval of the merger or consolidation and that appraisal rights are
available for any or all shares of such class or series of stock of such
constituent corporation, and shall include in such notice a copy of this
section; provided that, if the notice is given on or after the effective
date of the merger or consolidation, such notice shall be given by the
surviving or resulting corporation to all such holders of any class or
series of stock of a constituent corporation that are entitled to appraisal
rights. Such notice may, and, if given on or after the effective date of the
merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such
notice, demand in writing from the surviving or resulting corporation the
appraisal of such holder's shares. Such demand will be sufficient if it
reasonably informs the corporation of the identity of the stockholder and
that the stockholder intends thereby to demand the appraisal of such
holder's shares. If such notice did not notify stockholders of the effective
date of the merger or consolidation, either (i) each such constitutent
corporation shall send a second notice before the effective date of the
merger or consolidation notifying each of the holders of any class or series
of stock of such constitutent corporation that are entitled to appraisal
rights of the effective date of the merger or consolidation or (ii) the
surviving or resulting corporation shall send such a second notice to all
such holders on or within 10 days after such effective date; provided,
however, that if such second notice is sent more than 20 days following the
sending of the first notice, such second notice need only be sent
II-2
to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent
of the corporation that is required to give either notice that such notice
has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein. For purposes of determining the stockholders
entitled to receive either notice, each constitutent corporation may fix, in
advance, a record date that shall be not more than 10 days prior to the date
the notice is given, provided, that if the notice is given on or after the
effective date of the merger or consolidation, the record date shall be such
effective date. If no record date is fixed and the notice is given prior to
the effective date, the record date shall be the close of business on the
day next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw such
stockholder's demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant
II-3
factors, including the rate of interest which the surviving or resulting
corporation would have had to pay to borrow money during the pendency of the
proceeding. Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court may,
in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on the
list filed by the surviving or resulting corporation pursuant to subsection
(f) of this section and who has submitted such stockholder's certificates of
stock to the Register in Chancery, if such is required, may participate fully in
all proceedings until it is finally determined that such stockholder is not
entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
II-4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
English law does not permit a company to indemnify a director or an officer
of the company or any person employed by the company as an auditor against any
liability that, by virtue of any rule of law, would otherwise attach to him in
respect of negligence, default, breach of duty of breach of trust in relation to
the company, except liability incurred by such director, officer or auditor in
defending any legal proceedings (whether civil or criminal) in which judgement
is given in his favour or in which is acquitted or in certain instances in
which, although he is liable, a court finds that such director, officer or
auditor acted honestly and reasonably and that, with regard to all the
circumstances, he ought fairly to be excused and relief is granted by the court.
English law enables companies to purchase and maintain insurance for directors,
officers and auditors against any liability that would otherwise attach to them
in respect of any negligence, default, breach of duty or breach of trust in
relation to the company. World Gaming Plc's articles of association provide
that:
"INDEMNITY"
168.1 Subject to the Statutes and without prejudice to any indemnity to which he
may otherwise be entitled, every Director, Secretary or manager of the
Company shall be entitled to be indemnified by the Company against all
costs, charges, losses, expenses and liabilities incurred by him in the
execution and discharge of his duties or the exercise of his powers,
authorities and discretions, including any liability incurred by him in
defending any proceedings, civil or criminal, which relate to anything
done or omitted or alleged to have been done or omitted by him as an
officer or employee of the Company and in which judgment is given in his
favour or the proceedings are otherwise disposed of without any finding or
admission of any material breach of duty on his part or in which he is
acquitted or in connection with any application in which relief is granted
to him by the court from liability in respect of negligence, default,
breach of duty or breach of trust, in relation to the affairs of the
Company.
168.2 Subject to the Statutes, the Board may exercise all the powers of the
Company to purchase and maintain insurance for the benefit of a person who
is an officer or employee, or former officer or former employee, of the
Company or a Subsidiary Undertaking or in which the Company has an
interest, direct or indirect, or who is or was a trustee of a retirement
benefits scheme or another trust in which an officer or employee or former
officer or former employee is or has been interested indemnifying him
against any liability for negligence, default, breach of duty or breach of
trust or any other liability which may lawfully be insured against by the
Company."
II-1
ITEM 21. EXHIBITS AND FINANCIAL STATEMENTS.
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) List of Exhibits:
EXHIBIT NO. EXHIBIT
- ----------- -------
2.0 Agreement and Plan of Reorganization (1)
3.1 Memorandum of Association of World Gaming Plc (2)
3.2 Articles of Association of World Gaming Plc (2)
5.0 Opinion of Orchard Solicitors regarding legality of the
securities being registered (4)
8.1 Opinion of Greenberg Traurig, LLP regarding certain U.S.
federal tax consequences (4)
8.2 Opinion of Kingston Smith regarding certain U.K. tax
consequences (4)
21.0 Subsidiaries of Registrant (4)
23.1 Consent of Orchard Solicitors (contained in the opinion
included as Exhibit 5.0) (4)
23.2 Consent of Greenberg Traurig, LLP (contained in opinion
included as Exhibit 8.1) (4)
23.3 Consent of Kingston Smith (contained in opinion included as
Exhibit 8.2) (4)
23.4 Consent of HJ & Associates
24.0 Power of Attorney (included in the signature page to the
initial filing of this Registration Statement)
27.0 Financial Data Schedule (3)
99.0 Form of Proxy Card (4)
- ------------------------
(1) Filed as Appendix I annexed to the proxy statement/prospectus included in
this Registration Statement.
(2) Filed as an exhibit to Appendix I annexed to the proxy statement/prospectus
included in this Registration Statement.
(3) Incorporated herein by reference from the Form 10-Q of Starnet
Communications International (DE) Inc. for the quarter ended July 31, 2000
and filed on September 14, 2000, as amended.
(4) Previously filed.
(b) Financial Statements Schedules
Not applicable.
(c) Reports, Opinions or Appraisals
None.
II-2
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
The undersigned registrant hereby undertakes to (i) respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items (4), 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means, and (ii) to arrange or provide for a facility in the
United States for the purpose of responding to such requests. The undertaking in
subparagraph (i) above include information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
World Gaming Plc certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form F-4 and has duly caused this
amendment number 1 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized in St. John's, Antigua on the 7th day
of November, 2000.
WORLD GAMING PLC
/s/ FRED HAZELL
------------------------------------------------
Fred Hazell, Chairman, President and CEO
Pursuant to the requirements of the Securities Act of 1933, this amendment
number 1 to the registration statement has been signed below by the following
persons in the capacities and on the date indicated.
/s/ FRED HAZELL
-------------------------------------------
Date: November 7, 2000 Fred Hazell, Chairman, President and CEO
(principal executive officer)
/s/ CHRISTOPHER THOMPSON*
-------------------------------------------
Date: November 7, 2000 Christopher Thompson, Vice President, Finance
(principal financial and accounting officer)
/s/ WOLF BERGELT*
Date: November 7, 2000 -------------------------------------------
Wolf Bergelt, Director
/s/ JASON BOLDUC*
Date: November 7, 2000 -------------------------------------------
Jason Bolduc, Director
/s/ BROWNELL COMBS II*
Date: November 7, 2000 -------------------------------------------
Brownell Combs II, Director
/s/ NICHOLAS JACKSON*
Date: November 7, 2000 -------------------------------------------
Nicholas Jackson, Director
/s/ CLARE ROBERTS*
Date: November 7, 2000 -------------------------------------------
Clare Roberts, Director
/s/ MATTHEW STASIOR*
Date: November 7, 2000 -------------------------------------------
Matthew Stasior, Director
*By: /s/ FRED HAZELL
--------------------------------------
Fred Hazell as Attorney-in-Fact
II-4