Exhibit 3.5
DATED 1997
----------------------------------------
ALLIANCE RESOURCES PLC
________________________________________
LOAN NOTE INSTRUMENT
constituting convertible non-interest bearing
subordinated unsecured loan notes 1997/2007
of Alliance Resources PLC
________________________________________
ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 0171-638-1111
Fax: 0171-972-7990
ASC/PDG/A90200030
THIS LOAN NOTE INSTRUMENT is entered into by way of deed poll this . day of .
1997 by Alliance Resources PLC, a company registered in England and Wales with
registered number 2532955 whose registered office is at Kingsbury House, 15-17
King Street, London, SW1Y 6QU (the "Company").
WHEREAS
(A) The Company has, by resolution of a duly authorised committee of its Board
of Directors, passed on . 1997, created (Pounds)873,281.25 nominal amount
of convertible, non-interest bearing, subordinated, unsecured loan notes
1997/2007, constituted as to 1,078,125 notes of 81p each, as unsecured,
non-interest bearing, subordinated obligations of the Company, constituted
as provided in this Loan Note Instrument.
(B) The Notes have been created in connection with, and will be issued in part
consideration for, the ORRI Acquisition (as defined in the listing
particulars relating to the Company dated . 1997).
NOW THIS LOAN NOTE INSTRUMENT WITNESSETH AND THE COMPANY HEREBY AGREES AND
DECLARES AS FOLLOWS:-
1. INTERPRETATION
--------------
1.1 In this Loan Note Instrument and the schedules hereto, unless the context
otherwise requires, the following expressions shall have the following
meanings:-
"business day" means a day (other than a Saturday) on which banks are
open for the transaction of normal banking business in
London;
"Company Conversion means the period commencing on the day
Period" falling ten years from the date of this Loan
Note Instrument and expiring on the day prior
to the day falling ten years and six months
from the date of this Loan Note Instrument;
"Conditions" means the conditions set out in schedule 2,
as they may from time to time be modified in
accordance with the provisions of this
Instrument;
"Conversion Date" shall have the meaning given in Condition
7.1;
"Conversion Rate" means a rate of one Ordinary Share for one
fully paid Note, as adjusted from time to
time in the circumstances referred to and in
the manner provided in the Conditions;
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"Directors" means the Board of Directors for the time
being of the Company or a committee of the
Board of Directors of the Company duly
authorised to issue and call for payment
under, and/or deal with all or certain
matters relating to, the Notes;
"Extraordinary Resolution" means an extraordinary resolution of the
Noteholders, as defined in paragraph 18 of
schedule 4;
"First Instalment" means the first instalment of 80p credited as
paid up on issue in respect of each Note;
"Instrument" means this Instrument and the schedules
hereto, as from time to time modified in
accordance with the provisions of the
Instrument;
"Notes" means the (Pounds)873,281.25 nominal amount
of convertible, non- interest bearing,
subordinated, unsecured loan notes 1997/2007
of the Company, constituted as to 1,078,125
notes of 81p each, hereby constituted or (as
the case may be) the amount thereof for the
time being outstanding or (as the context may
require) the principal monies represented by
the same or a specific portion thereof;
"Noteholders" means the several persons for the time being
entered in the Register as the holders of the
Notes;
"Noteholder Conversion means the period commencing on the date of
Period" this Loan Note Instrument and expiring on the
day prior to the commencement of the Company
Conversion Period;
"Ordinary Shares" means issued and fully paid ordinary shares
of 40p each in the capital of the Company or
any other ordinary shares of the Company into
which such shares may be converted,
consolidated or sub-divided;
"Register" means the register of holders of Notes kept
by or on behalf of the Company; and
"Second Instalment" means the second instalment of 1p payable,
subject to the Conditions, in respect of each
Note.
1.2 Words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
references to corporations, partnerships and other unincorporated
associations or bodies of persons.
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1.3 References to a Clause or Schedule are references to a clause of, or a
schedule to, this Instrument.
1.4 References to statutory provisions shall be construed as references to
those provisions as respectively replaced, amended or re-enacted (whether
before or after the date hereof) from time to time and shall include any
provisions of which they are re-enactments (whether with or without
modification) and any subordinate legislation made under such provisions.
1.5 Words and expressions not otherwise defined in this Instrument and which
are defined in the Companies Act 1985 (as amended) bear the meanings
ascribed to them respectively in that Act.
1.6 The contents table and the descriptive headings to Clauses and schedules
are inserted for convenience only, have no legal effect and shall be
ignored in the interpretation of this Instrument.
1.7 The provisions contained in the schedules shall have effect as if they had
been set out and incorporated in this Instrument.
2. COVENANT TO COMPLY WITH THE TERMS OF THE NOTES
----------------------------------------------
2.1 The Company HEREBY COVENANTS with the Noteholders and each of them to
comply with the terms of the Notes and to observe and perform the
conditions, which conditions shall be deemed to be incorporated in this
instrument and shall be binding on the Company and the Noteholders and all
persons claiming through or under them respectively.
2.2 By subscribing or purchasing or being a transferee of, or by applying or
causing application to be made for registration as the holder of, any Note,
a Noteholder agrees to be bound by the terms of this Instrument.
3. AMOUNT OF THE NOTES
-------------------
3.1 The total nominal amount of the Notes constituted by this Instrument is
limited to (Pounds)873,281.25.
3.2 The Notes will be issued in registered form in denominations of 81p in
nominal amount or integral multiples thereof.
4. ALLOTMENT AND PAYMENT UP OF THE NOTES
-------------------------------------
The Notes shall be allotted credited as partly paid up as to the First
Instalment paid on each Note. The Second Instalment shall be payable in
accordance with Condition 2. On payment of the Second Instalment in respect
of a Note, that Note shall become fully paid.
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5. INTEREST
--------
The Notes shall not bear interest.
6. REPAYMENT
---------
The Notes shall be repaid in accordance with Condition 5.
7. STATUS OF THE NOTES AND SUBORDINATION
-------------------------------------
7.1 The Notes represent a direct and unsecured obligation of the Company for
the due and punctual payment of the principal in respect of them and for
the performance of all the obligations of the Company with respect to them.
7.2 If whilst any Notes remain capable of being converted, the Company
commences liquidation, whether voluntary or compulsory, the provisions of
Condition 10 shall apply.
8. CONVERSION
----------
The Notes shall be convertible in accordance with Conditions 7 and 11.
9. REGISTER
--------
9.1 The Company shall cause a register to be maintained in respect of the Notes
in accordance with the provisions of schedule 3.
9.2 The provisions relating to the Register set out in schedule 3 shall be
deemed to be incorporated in this Instrument and shall be binding on the
Company and the Noteholders and on all persons claiming through or under
them respectively.
10. TRANSFER
--------
The Notes will be transferable in accordance with schedule 3.
11. NOTE CERTIFICATES
-----------------
11.1 Every Noteholder will, subject to Clause 11.3, be entitled without charge
to one partly paid Note certificate for the aggregate number of partly paid
Notes held by him.
11.2 The Directors shall issue a fully paid Note certificate to any Noteholder
who has made valid payment of the Second Instalment and delivered up his
partly paid certificate.
11.3 Joint holders of Notes shall be entitled to one certificate only in respect
of the Notes held by them jointly and such certificate shall be delivered
to that one of the joint holders who is first named on the Register in
respect of the joint holding or to such other person as the joint holders
may in writing direct.
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11.4 Certificates shall be sealed by the Company under its common seal or under
its official seal kept by the Company pursuant to Section 40 of the
Companies Act 1985 and will state the number of Notes held by the
Noteholder. Partly paid and fully paid certificates shall be in or
substantially in the form or to the effect set out in schedule 1, shall be
certificated as being partly paid or fully paid as the case may be and
shall be issued in respect of whole Notes only.
12. NOTICES
-------
12.1 Any notice or other document may be served on or delivered to any
Noteholders by the Company or by the Directors, either personally or by
sending it through the post in a prepaid cover addressed to such Noteholder
at his registered address or at such other address as such Noteholder may
have specified in writing to the Company or the Company's agent for the
delivery of Certificates and/or other documentation relating to the Notes.
Any notice or document served or delivered to the joint holder of any Notes
whose name stands first in the Register in respect of such Notes shall be
sufficient notice to or service on all the joint holders.
12.2 Notice may be given to the person(s) entitled to any Notes in consequence
of the death or bankruptcy of any Noteholder by sending the same by post in
a prepaid cover addressed to such person(s) by name or by the title of the
representatives or trustees of such Noteholder at the address (if any)
supplied for the purpose by or on behalf of such person(s) or (until such
name and address are supplied) by giving notice in the manner in which it
would have been given if the death or bankruptcy had not occurred.
12.3 Where a notice or other document is served or sent by first class post,
service or delivery shall be deemed to be effected 24 hours after the time
when the cover containing the same is posted in the case of service by
first class post, or 48 hours after the time of posting in the case of
service by second class post. In proving such service or delivery, it shall
be sufficient to prove that such cover was properly addressed, stamped and
posted.
13. MODIFICATION OF RIGHTS
----------------------
All or any of the rights for the time being attached to the Notes may from
time to time (whether or not the Company is being wound up) be altered or
abrogated with the sanction of an Extraordinary Resolution. Such alteration
or abrogation approved as aforesaid shall be effected by deed poll executed
by the Company and expressed to be supplemental to this Loan Note
Instrument. Modifications to this Loan Note Instrument which are of a
formal, minor or technical nature, or made to correct a manifest error, or
any modifications which the Directors consider appropriate may be effected
by deed poll executed by the Company and expressed to be supplemental to
this Loan Note Instrument and notice of such alteration or abrogation or
modification shall be given by the Company to the Noteholders.
14. GOVERNING LAW
-------------
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This Instrument and the Notes shall be governed by and construed in
accordance with English law and any disputes arising in respect thereof
shall be subject to the jurisdiction of the English courts.
IN WITNESS whereof this Instrument has been executed as a deed the day and year
first above written
Executed as a deed by )
Alliance Resources PLC )
acting by two of its )
directors/one of its )
directors and its secretary )
Director
Director/Secretary
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SCHEDULE 1
FORM OF NOTE
Certificate No. Transfer No. Date Nominal Amount
(Pounds) ............
ALLIANCE RESOURCES PLC
______________________
(Registered in England No. 2532955)
CONVERTIBLE NON-INTEREST BEARING SUBORDINATED UNSECURED
LOAN NOTES 1997/2007
Issue of (Pounds)873,281.25 Unsecured Loan Notes 1997/2007 (the "NOTES"),
created and issued by ALLIANCE RESOURCES PLC (the "COMPANY") pursuant to the
Memorandum and Articles of Association of the Company and a resolution of the
board of directors passed on . 1997.
THIS IS TO CERTIFY that of
is/are the registered holder(s) of (Pounds). in nominal amount of the above
mentioned Notes which are constituted by an instrument made by the Company on .
1997 (the "INSTRUMENT") and are issued with the benefit of and subject to the
provisions contained in the instrument and the conditions endorsed hereon.
Given under the Common Seal of the Company
Dated . 1997
Notes: (i) Where the context so admits, words and expressions defined in the
instrument shall bear the same respective meanings in the
conditions endorsed hereon.
(ii) The Notes are transferable in amounts or multiples of 81p. No
transfer, whether of the whole or any part of the Notes comprised
in this certificate, will be accepted for registration unless
accompanied by this certificate and lodged at the registered
office of the company.
(iii) The Notes are repayable and convertible in accordance with the
conditions endorsed hereon.
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(iv) The Notes represented by this certificate are [fully paid]
[partly paid up as to 80p per Note].
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NOTICE OF CONVERSION
To: ALLIANCE RESOURCES PLC (the "COMPANY")
1. I/We, being the registered holder(s) of the Notes represented by this
certificate, hereby give notice of my/our desire to convert into fully paid
Ordinary Shares the whole (pounds). only/1/ of such Notes in accordance
with the conditions applicable thereto.
2. I/We agree to accept all of the fully paid Ordinary Shares of the Company
to be issued to me/us pursuant hereto subject to the Memorandum and
Articles of Association of the Company. I/We desire all such Ordinary
Shares to be registered in my/our name(s) and hereby authorise the entry of
my/our name(s) in the Register of Members in respect thereof and the
despatch of a certificate therefor by post at my/our risk to the person
whose name and address is set out below or, if none is set out, to the
registered address of the sole or first named holder.
3. I/We hereby authorise the despatch of a certificate for the balance (if
any) of the Notes represented by this certificate which are not converted
by post at my/our risk to the person whose name and address is set out
below or, if none is set out, to the sole or first named holders at his/her
registered address.
Dated . .
Signature(s) of Noteholder(s)/2/:
_____________________________________________
_____________________________________________
Name/3/: _____________________________________________
Address: _____________________________________________
___________________________
/1/ Delete or complete as appropriate. Conversion of part only is permitted in
accordance with condition 7 and must be 81p or a multiple thereof. Only
fully paid Notes may be converted. If no amount is inserted, all of such
Notes will be converted.
/2/ In the case of joint holders ALL should sign. A body corporate should
execute under its common seal or under the hand of some officer or attorney
duly authorised in that behalf in which event the Note must be accompanied
by the authority under which this notice is completed.
/3/ Please insert in BLOCK CAPITALS the name and/or the address of the person
to whom you wish the Ordinary Share certificate and any balance certificate
for Notes to be sent if it is different from that of the sole or first
named Noteholder.
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SCHEDULE 2
THE CONDITIONS
1. DEFINITIONS
-----------
Words and expressions defined in Clause 1 of the Instrument bear the same
meanings when used in these Conditions.
2. PAYMENT OF THE SECOND INSTALMENT
--------------------------------
2.1 The Second Instalment on a Note may be paid at any time at the option of
the relative Noteholder. Payment of the Second Instalment shall be a
condition precedent to the right of a Noteholder to convert Notes into
Ordinary Shares.
2.2 Payment of the Second Instalment must be made (without prejudice to the
Company's right to accept late payment) on such date falling during the
Company Conversion Period as the Company may notify to Noteholders by
giving notice falling not less than 14 nor more than 28 days after the date
of such notice. No interest will be payable on any amounts paid before
their due date and such amounts will only be applied in payment of the
Second Instalment on that date.
2.3 The Second Instalment is to be paid by lodging the partly paid Note
certificate, together with a remittance for the full amount of the Second
Instalment in pounds sterling made payable to the Company, at the
registered office of the Company.
2.4 Until such time as the Second Instalment in respect of any Note is duly
paid, the person(s) who is/are for the time being registered as the
holder(s) of such Note shall be liable to the Company to pay the amount of
the Second Instalment in respect of that Note.
3. CONSOLIDATION
-------------
If the Second Instalment is not paid in accordance with paragraph 2.2 above
following service of notice by the Company pursuant to such condition all
partly paid Notes registered in the name of a Noteholder at such time will
then be consolidated and sub- divided into the relevant number of fully
paid Notes of 81p nominal whereupon such Noteholder's obligation to pay the
Second Instalment shall cease.
4. STATUS
------
The Notes will constitute an unsecured, non-interest bearing, subordinated
obligation of the Company in accordance with the provisions of the
Instrument.
5. REPAYMENT
---------
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Any Note which has not been converted prior to ., . 2007 [10 years and 6
months from issue] will be repaid on that date at an amount equal to twice
its nominal amount if fully paid up and otherwise at an amount equal to
twice the nominal amount paid up thereon.
6. REPLACEMENT OF NOTE CERTIFICATES
--------------------------------
If any certificate be worn out, lost, stolen, mutilated or destroyed then a
new certificate in lieu thereof may be issued to the person entitled to the
Notes represented thereby without charge (other than exceptional out-of-
pocket expenses) and on such terms as to evidence and indemnity as the
Company may require. An entry as to the issue of a new certificate and as
to the provision of an indemnity (if any) shall be made in the Register.
Mutilated certificates must be surrendered before replacements will be
issued.
7. PROCEDURE ON CONVERSION AT THE OPTION OF THE NOTEHOLDERS
--------------------------------------------------------
7.1 Each holder of fully paid Notes shall be entitled to require the Company to
allot fully paid Ordinary Shares in accordance with paragraph 7.3 of this
condition on any date (each, a "CONVERSION DATE") during the Noteholder
Conversion Period in exchange for and in satisfaction of such nominal
amount of fully paid Notes held by him as he may specify in the Conversion
Notice (as defined below) (being an integral multiple of 81p nominal of
Notes) at the rate (subject to adjustment in accordance with condition 8)
of 40p nominal of ordinary share capital of the Company for every 81p
nominal of fully paid Notes converted (such rate as so adjusted from time
to time being hereinafter called the "CONVERSION RATE") provided that no
Noteholder shall be entitled to allotment of a fraction of an Ordinary
Share. The rights of conversion conferred by these conditions are
hereinafter referred to as the "CONVERSION RIGHTS".
7.2 Such right shall be exercisable by the Noteholder concerned completing and
signing the Conversion Notice printed on the Notes (the "CONVERSION
NOTICE") in respect of which it is desired to exercise the Conversion
Rights (or by completing such other form as the Directors may approve) and
delivering the same together with such certificate, and such other evidence
(if any) as the Company may reasonably require to prove the title of the
person exercising the Conversion Rights, to the registered office of the
Company so as to arrive at any time during the Noteholder Conversion
Period. A Conversion Notice shall not be withdrawn without the consent in
writing of the Company.
7.3 The Company will, not later than 14 days after such delivery, allot and
issue to the Noteholder or his nominee(s) the nominal amount of Ordinary
Shares credited as fully paid to which he or such nominee(s) shall be
entitled by virtue of the exercise of his Conversion Rights and such
allotment and issue shall be in full satisfaction and discharge of the
principal amount of the Notes so converted.
7.4 The Company shall, not later than the expiry of 14 days next following a
Conversion Date, send (or procure to be sent) free of charge to each
Noteholder who has exercised his Conversion Rights or as otherwise directed
a certificate for the Ordinary Shares arising on conversion together (if
appropriate) with a certificate in respect of any balance of such
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Noteholder's holding of Notes in respect of which the Conversion Rights
have not been exercised as aforesaid.
7.5 Ordinary Shares allotted on conversion will not rank for any dividends or
other distributions declared, made or paid in respect of any financial year
of the Company prior to the financial year in which the relevant Conversion
Date falls, nor shall they rank for any dividends or other distributions
declared, made or paid on a date (or by reference to a record date) prior
to the relevant Conversion Date but, subject thereto, will rank pari passu
in all other respects with the Ordinary Shares in issue at the relevant
Conversion Date including ranking in full for all dividends and other
distributions in respect of the financial year in which the relevant
Conversion Date occurs provided that on any allotment falling to be made
pursuant to paragraph 9.1 below the Ordinary Shares so to be allotted shall
not rank for any dividends or other distributions declared, made or paid by
reference to a record date prior to the date of allotment.
7.6 Application will be made to the London Stock Exchange for the Ordinary
Shares allotted pursuant to any exercise of conversion rights to be
admitted to the Official List and the Company will use all reasonable
endeavours to obtain the admission thereof not later than 28 days after the
relevant Conversion Date.
8. CAPITALISATION ISSUES
---------------------
Upon any allotment of fully paid Ordinary Shares pursuant to a
capitalisation of profits or reserves to any holders of Ordinary Shares on
the register on a record date being a date on which any Notes remain
capable of being converted, or upon any consolidation or sub- division of
the Ordinary Shares whilst any Notes remain capable of being converted, the
nominal amount of ordinary share capital of the Company to be issued in
respect of each 81p nominal of Notes converted on any Conversion Date
following such record date shall be increased or, as the case may be,
decreased in due proportion (as certified by the auditors of the Company
acting as experts and not as arbitrators and whose certificate shall, save
for any manifest error, be conclusive and binding on all concerned). No
adjustment shall be made in the Conversion Rate by reason only of the issue
by the Company to a holder of Ordinary Shares in lieu, in whole or in part,
of any cash dividend of fully paid Ordinary Shares by way of capitalisation
of an amount standing to the credit of the profit and loss account or other
reserves.
9. OFFERS AND INVITATIONS
----------------------
9.1 If, whilst any Notes remain capable of being converted, the Company makes
any offer or invitation (whether by rights issue, rights offer or otherwise
but not being an offer of shares in lieu of a cash dividend payment) to the
holders of Ordinary Shares in their capacity as such, or any offer or
invitation is made to such holders otherwise than by the Company, then the
Company shall, as far as it is able, procure that at the same time the same
offer or invitation is made to the then Noteholders as if their conversion
rights had been exercisable and had been exercised on the day immediately
preceding the date (or record date) of such offer or invitation on the
terms (subject to any adjustment pursuant
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to paragraph 8 above) on which the same could have been exercised on the
basis then applicable provided that, if the Directors shall so resolve, in
the case of any offer or invitation made by the Company, the Company shall
not be required to procure that the same offer or invitation is made to the
Noteholders but the Conversion Rate shall be adjusted accordingly. The
Company will procure that the auditors for the time being of the Company
will certify in writing the appropriateness of the adjustments.
9.2 If, whilst any of the Notes remain capable of being converted, any offer is
made to all (or, as nearly as practicable, all) the holders of the ordinary
share capital of the Company (or to all, or as nearly as practicable all,
such holders other than the offeror and/or any company controlled by the
offeror and/or persons associated or acting in concert with the offeror) to
acquire the whole or any part of the ordinary share capital of the Company
and the Company becomes aware that the right to cast more than 50 per cent.
of the votes which may ordinarily be cast on a poll at a general meeting of
the Company has or will become vested in the offeror and/or any company
controlled by the offeror and/or persons associated or acting in concert
with the offeror the Company shall give notice of that fact in writing to
all Noteholders within 14 days of its becoming aware of the same. Upon the
expiry of 60 days immediately following the date of such notice all
outstanding Notes in respect of which a Conversion Notice has not been
served shall, if not fully paid, be consolidated in accordance with
paragraph 3 and shall be treated as if a Conversion Notice in respect of
all such Notes had been duly served 14 days prior to the expiry of such
period.
10. LIQUIDATION
If, whilst any Notes remain capable of being converted, the Company
commences liquidation, whether voluntary or compulsory, the Company shall
forthwith give (or procure to be given) notice in writing to Noteholders of
such liquidation and, in reasonable detail, of the rights of Noteholders
hereunder as a result thereof. Thereupon, each Noteholder shall be deemed
in respect of the whole of his Notes to have given notice to the Company to
be treated as if a Conversion Date had occurred on the day immediately
preceding the date of such commencement and his Conversion Rights had been
exercisable and exercised as at that date at the Conversion Rate then
applicable. Thereupon, the Noteholder so electing shall be entitled, in
lieu of the payments which would otherwise be due in respect of his Notes,
to participate in the assets available in the liquidation, if any, pari
passu with the holders of Ordinary Shares as if he were the holder of the
Ordinary Shares (including any fractional entitlement) to which he would
have become entitled by virtue of such conversion.
11. CONVERSION AT THE OPTION OF THE COMPANY
At any time during the Company Conversion Period, the Company shall be
entitled by not less than 14 days' notice in writing to Noteholders (a
"COMPULSORY CONVERSION NOTICE") to convert, on the expiry date of such
Compulsory Conversion Notice, the whole (but not part only) of the Notes
into Ordinary Shares at the Conversion Rate applicable on such expiry date
and in the event of such notice being given as aforesaid the holding
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of such Notes of each Noteholder shall be automatically converted at such
rate on such expiry date. For the purposes of this condition 11 such expiry
date shall be deemed to be a Conversion Date and the provisions of these
conditions shall apply to any conversion hereunder accordingly.
12. NO CONVERSION OF PARTLY PAID NOTES
No Notes other than fully paid Notes shall be capable of conversion.
Provided however that a holder of partly paid Notes may convert such Notes,
if they are then convertible, in accordance with paragraph 7 above by
tendering payment in full of the Second Instalment with the Conversion
Notice. This paragraph shall be without prejudice to the rights of the
Company under paragraph 3 above.
13. RESTRICTIONS
So long as any Notes remain capable of being converted then, except with
such sanction or consent as is required under these conditions for any
modification, abrogation or compromise of the rights of Noteholders, the
Company undertakes (so far as it is lawfully able) to each of the
Noteholders that:-
(a) the Company shall keep available for issue sufficient authorised but
unissued share capital to satisfy in full (without the need for the
passing of any resolution by shareholders) all conversion rights
remaining exercisable;
(b) the Company shall not issue any Ordinary Shares credited as fully paid
by way of capitalisation of profits or reserves nor make any such
offer as is referred to in paragraph 9.1 above if as a result the
Company would on any subsequent exercise of the conversion rights be
obliged to issue Ordinary Shares at a discount.
14. GENERAL
14.1 The Company will concurrently with the issue of the same to holders of
Ordinary Shares send to each Noteholder (or, in the case of joint holders,
to the first named) a copy of each published annual report and accounts of
the Company and unaudited interim report of the Company together with all
documents required by law to be annexed thereto, and copies of every
statement, notice or circular issued to holders of Ordinary Shares.
14.2 Any determination or adjustment made pursuant to these terms and conditions
by the auditors of the Company shall be made by them as experts and not
arbitrators and shall be final and binding on the Company and all
Noteholders.
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SCHEDULE 3
PROVISIONS AS TO THE REGISTER
1. REGISTER OF NOTES
1.1 The Company shall cause a register to be maintained at the registered
office of the Company showing the amount of the Notes for the time being
issued, the date of issue and the amount of Notes for the time being
outstanding, the names and addresses of the Noteholders, the nominal
amounts of the Notes held by them respectively and all transfers or changes
of ownership of the Notes.
1.2 Any change of name or address on the part of any holder of Notes shall
forthwith be notified by the holder to the Company and the Company shall
alter the Register accordingly.
2. RECOGNITION OF NOTEHOLDER AS ABSOLUTE OWNER
2.1 Except as required by law, the Company will recognise the registered holder
of any Notes as the absolute owner thereof and shall not (except as ordered
by a court of competent jurisdiction) be bound to take notice or see to the
execution of any trust, whether express, implied or constructive, to which
any Notes may be subject and the Company may accept the receipt of the
registered holder for the time being of any Notes, or in the case of joint
registered holders the receipt of any of them, for the principal moneys
payable in respect thereof or for the interest from time to time accruing
due in respect thereof or for any other moneys payable in respect thereof
as a good discharge to the Company notwithstanding any notice it may have
whether express or otherwise of the right, title, interest or claim of any
other person to or in such Notes, interest or moneys.
2.2 If a warrant in payment of any amounts due to the registered holders of any
Notes, made payable and despatched in accordance with the conditions, is
encashed such encashment shall be deemed to be a good discharge to the
Company notwithstanding any notice it may have whether express or otherwise
of the right, title, interest or claim of any other person to or in such
moneys.
2.3 No notice of any trust, express, implied or constructive, shall (except as
by statute provided or as required by order of a court of competent
jurisdiction) be entered in the Register in respect of any Notes.
3. EXCLUSION OF EQUITIES
The Company will recognise every holder of Notes as entitled to his Notes
free from any equity, set-off or cross-claim on the part of the Company
against the original or any intermediate holder of the Notes.
4. TRANSFERABILITY OF NOTES
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4.1 Every holder of Notes will be entitled (subject as hereinafter provided) to
transfer the same or any part (being an amount or integral multiple of 81p)
by an instrument in writing in the usual or common form or such other form
as the Company may accept. There shall not be included in any instrument of
transfer any notes other than the Notes constituted by the Instrument.
4.2 Every instrument of transfer must be signed by the transferor or where the
transferor is a corporation given under its common seal or signed on its
behalf by a duly authorised officer or agent and the transferor shall
remain the owner of the Notes to be transferred until the name of the
transferee is entered in the Register in respect thereof.
4.3 Every instrument of transfer must be lodged for registration at the place
where the Register shall for the time being be kept accompanied by the
certificate for the Notes all or part of the nominal amount of which is to
be transferred and such other evidence as the Directors or other officers
of the Company authorised to deal with transfers may require to prove the
title of the transferor or his right to transfer the Notes and, if the
instrument of transfer is executed by some other person on his behalf, the
authority of the person signing the same.
4.4 No transfer shall be registered of Notes in respect of which a notice
requiring repayment has been given.
4.5 All instruments of transfer which shall be registered may be retained by
the Company.
4.6 Notwithstanding any other provision contained herein, for so long as any
Regulated Entity holds any Notes which, upon conversion to Ordinary Shares,
would result in such Regulated Entity holding more than 5% of the
outstanding Ordinary Shares, such Regulated Entity may only transfer such
Notes under the following circumstances: (i) in a widely distributed public
offering; (ii) in a transfer pursuant to Rule 144 under the United States
of America ("U.S.") Securities Act of 1933, as amended, or any similar rule
then in force; (iii) in a transfer where the Ordinary Shares underlying the
Notes being transferred represent two percent or less of the outstanding
Ordinary Shares; (iv) in a transfer to a person if such person already owns
or has negotiated to purchase at least a majority of the Ordinary Shares
(not including the transfer from the Regulated Entity); (v) in a transfer
to the Company; (vi) in a transfer to an affiliate of such holder or any
other Regulated Entity (as defined below); or (vii) in any other transfer
permitted by the Board of Governors of the Federal Reserve System of the
U.S.
Once such Regulated Entity holds Notes and Ordinary Shares which, after
conversion of such Notes, would constitute 5.0% or less of the outstanding
Ordinary Shares, the foregoing restrictions on transfer shall cease to
apply.
"Regulated Entity" means (i) any entity that is a "bank holding company"
(as defined in Section 2(a) of the U.S. Bank Holding Company Act 1956, as
amended, (the "BHC Act")) or any non-bank subsidiary of such an entity or
(ii) any entity that, pursuant to
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Section 8(a) of the U.S. International Banking Act of 1978, as amended, is
subject to the provisions of the BHC Act or any non-bank subsidiary of such
an entity.
4.7 The Company shall be entitled to impose such conditions and restrictions on
transfer as it may from time to time determine are reasonably necessary for
the purpose of complying with relevant securities laws of the United
States.
5. NO FEE FOR REGISTRATION OF TRANSFERS
No fee shall be charged for the registration of any transfer or for the
registration of any probate, letters of administration, certificate of
marriage or death, power of attorney or other document relating to or
affecting the title to any Notes.
6. DEATH OR BANKRUPTCY OF NOTEHOLDERS
6.1 The executors or administrators of a deceased Noteholder (not being one of
several joint holders) shall be the only persons recognised by the Company
as having any title to or interest in such Note.
6.2 In the case of the death of any of the joint holders of a Note the
survivors or survivor will be the only persons or person recognised by the
Company as having any title to or interest in such Note.
6.3 Any person becoming entitled to Notes in consequence of the death or
bankruptcy of any Noteholder or of any other event giving rise to the
transmission of such Notes by operation of law may, upon producing such
evidence that he sustains the character in respect of which he proposes to
act under this paragraph or of his title as the Directors shall think
sufficient, be registered himself as the holder of the Note or subject to
the preceding paragraphs may transfer the Note.
7. RECEIPT OF JOINT HOLDERS
If several persons are entered in the register as joint registered holders
of any Notes then, without prejudice to paragraph 2 above, the receipt of
any one of such persons for any interest or principal or other moneys
payable in respect of such Notes shall be as effective a discharge to the
Company as if the person signing such receipt were the sole registered
holder of such Notes.
8. THE REGISTER
8.1 A Noteholder and any person authorised by him may at all reasonable times
during office hours inspect the Register and upon payment of a reasonable
charge take copies of, or extracts from, the Register or any part of it.
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8.2 The Register may be closed by the Company for such periods and at such
times (not exceeding 30 business days in any one year) as it may think fit
and during such period the Company shall be under no obligation to register
transfers of the Notes.
9. REPLACEMENT OF CERTIFICATES
If the certificate for any Notes is lost, defaced or destroyed, it may be
renewed, on such terms (if any) as to evidence and indemnity as the
Directors may require, but so that in the case of defacement the defaced
certificate shall be surrendered before the new certificate is issued.
10. RISK TO NOTEHOLDERS
All certificates, other documents and remittances sent through the post
shall be sent at the risk of the Noteholders entitled thereto.
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SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. CALLING OF MEETINGS
The Company at any time may, and shall upon the request in writing signed
by Noteholders holding not less than one-tenth in nominal value of the
Notes for the time being outstanding, convene a meeting of the Noteholders.
Every such meeting and every adjourned meeting shall be held at the
registered office of the Company for the time being or such other place as
the Company may specify.
2. NOTICE OF MEETINGS
At least 21 days' notice (exclusive of the day on which the notice is given
or deemed to be given and the day on which the meeting is to be held)
specifying the day, time and place of meeting shall be given to the
Noteholders of any meeting of the Noteholders. Any such notice shall
specify the terms of the resolutions to be proposed and shall include a
statement to the effect that proxies may be appointed in accordance with
the provisions of paragraph 15 of this schedule. No amendment (other than
an amendment to correct a typographical or manifest error) may subsequently
be made to the resolution(s) specified in the notice of meeting. The
accidental omission to give notice to, or the non-receipt of notice by, any
of the Noteholders shall not invalidate the proceedings at any meeting.
3. CHAIRMAN OF MEETINGS
Such person (who may, but need not, be a Noteholder) nominated in writing
by the Company shall be entitled to take the chair at every such meeting or
adjourned meeting. If at any meeting or adjourned meeting no person shall
be nominated or the person nominated shall not be present within 15 minutes
after the time appointed for the holding of such meeting or adjourned
meeting the Noteholders present shall choose one of their number to be
chairman.
4. QUORUM AT MEETINGS
At any such meeting two or more persons present in person (not being the
Company, any person directly or indirectly under the control of the Company
or any nominees thereof) or by proxy holding Notes or being proxies and
being or representing in the aggregate the holders of a majority in nominal
amount of the Notes then outstanding and not held by or on behalf of the
Company shall form a quorum for the transaction of business and no business
(other than the choosing of a chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of business.
5. ABSENCE OF QUORUM
If within half an hour from the time appointed for any such meeting a
quorum is not present, the meeting shall, if convened upon the requisition
of Noteholders, be dissolved.
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In any other case, the meeting shall stand adjourned for such period, not
being less than 14 days nor more than 42 days, and to such time and place
as may be appointed by the chairman. At such adjourned meeting two or more
persons present in person or by proxy (not being the Company, any person
directly or indirectly under the control of the Company or any nominee
thereof) holding Notes or being proxies (whatever the nominal amount of the
Notes which they hold or represent) shall form a quorum and shall have the
power to pass any resolution and to decide upon all matters which could
properly have been dealt with at the meeting from which the adjournment
took place had a quorum been present at such meeting.
6. NOTICE OF ADJOURNED MEETINGS
At least ten days' notice of any meeting adjourned through want of a quorum
shall be given in the same manner as of an original meeting and such notice
shall state the quorum required at such adjourned meeting. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
7. ADJOURNMENT OF MEETINGS
The chairman may with the consent of (and shall if directed by) any meeting
adjourn the same from time to time and from place to place but no business
shall be transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the adjournment
took place.
8. RESOLUTION ON A SHOW OF HANDS OR POLL
Every question submitted to a meeting shall be decided in the first
instance by a show of hands, and unless a poll is demanded (before or on
the declaration of the result of the show of hands) by the chairman, the
Company or by one or more persons holding Notes or being proxies and being
or representing in the aggregate the holders of not less than one-twentieth
of the nominal amount of the Notes then outstanding and not held by or on
behalf of the Company, a declaration by the chairman that the resolution
has been carried, or carried by a particular majority, or lost, or not
carried by any particular majority shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in favour
of or against such resolution.
9. MANNER OF TAKING POLL
If at any meeting a poll is so demanded it shall be taken in such manner
and, subject as hereinafter provided, either at once or after such an
adjournment as the chairman directs and the result of such poll shall be
deemed to be the resolution of the meeting at which the poll was demanded
as at the date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any business
other than the question on which the poll has been demanded.
10. TIME FOR TAKING POLL
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Any poll demanded at any meeting on the election of a chairman or on any
question of adjournment shall be taken at the meeting without adjournment.
11. PERSONS ENTITLED TO ATTEND AND VOTE
Any persons duly authorised by the Company including without limitation the
Directors, the secretary or the Company's auditors or legal or financial
advisers shall be entitled to attend and speak at any meeting of the
Noteholders and any other person authorised in that behalf by the
Directors. Save as aforesaid no person shall be entitled to attend or vote
at any meeting of the Noteholders unless he is registered as a holder of
Notes or he produces written evidence of his appointment as a
representative pursuant to paragraph 20 or is a proxy. No votes may be
exercised in respect of Notes held by or for the account of the Company or
anyone directly or indirectly under the control of it, but this shall not
prevent any proxy from being a director, officer or representative of, or
otherwise connected with the Company.
12. VOTES
12.1 Subject as provided in paragraph 11 above, at any meeting:-
(a) on a show of hands every Noteholder who (being an individual) is
present in person or by proxy or (being a corporation) is present by
its representative duly authorised in accordance with paragraph 20
below or its proxy, shall have one vote; and
(b) on a poll every person who is so present shall have one vote in
respect of every 81p nominal of Notes of which he is the holder or in
respect of which he is a proxy or a representative.
12.2 Without prejudice to the obligations of any proxies any person entitled to
more than one vote need not use all his votes or cast all the votes to
which he is entitled in the same way.
13. VOTES OF JOINT HOLDERS
In the case of the joint holders of Notes 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 joint holders and for this purpose
seniority shall be determined by the order in which the name stands in the
Register.
14. CASTING VOTE OF CHAIRMAN
In the case of an equality of votes, the chairman shall both on a show of
hands and on a poll have a casting vote in addition to the vote or votes
(if any) to which he may be entitled as a Noteholder or as a proxy or as a
representative.
15. APPOINTMENT OF PROXY
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15.1 Proxies named in any Form of Proxy (as defined below) or block voting
instruction need not be Noteholders.
15.2 A Noteholder may by instrument in writing (a "FORM OF PROXY") appoint a
proxy. The Form of Proxy shall be signed by the appointor or his attorney
duly authorised in writing or if the appointor is a corporation either
under the common seal or under the hand of an officer or attorney so
authorised. The Company may, but shall not be bound to, require evidence of
the authority of any such officer or attorney.
15.3 A Form of Proxy and the power of attorney or other authority (if any) under
which it is signed or a notarially certified copy of such power or
authority shall be deposited at such place as the Company may, in the
notice convening the meeting, direct or, if no such place is appointed,
then at the registered office of the Company not less than 48 hours before
the time appointed for holding the meeting at which the person named in the
Form of Proxy proposes to vote and in default the Form of Proxy shall not
be treated as valid. No Form of Proxy shall be valid after the expiration
of 12 months from the date named in it as the date of its execution.
15.4 A Form of Proxy may be in any usual or common form or in any other form
which the Company shall approve. A proxy shall, unless the contrary is
stated therein and subject to paragraph 15.3 above and paragraph 15.5
below, be valid as well for any adjournment of the meeting as for the
meeting to which it relates and need not be witnessed.
15.5 A vote given in accordance with the terms of a Form of Proxy shall be valid
notwithstanding the previous death or insanity of the principal or
revocation of the proxy or of the authority under which the proxy was
executed provided that no intimation in writing of such death insanity or
revocation shall have been received by the Company at its registered office
before the commencement of the meeting or adjourned meeting for the time
being at which the proxy is used.
16. POWERS OF MEETINGS OF NOTEHOLDERS
A meeting of the Noteholders shall in addition to all other powers (but
without prejudice to any powers conferred on other persons in the
instrument) have the following powers exercisable only by Extraordinary
Resolution namely:-
16.1 to sanction any proposal by the Company for any modification, abrogation,
variation or compromise of, or arrangement in respect of, the rights of the
Noteholders against the Company whether such rights shall arise under the
conditions, the instrument or otherwise;
16.2 to assent to any modification or abrogation of the conditions and of the
provisions of these presents which shall be proposed by the Company and to
authorise the Company to execute an instrument supplemental to this
instrument embodying any such modification or abrogation; and
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16.3 to appoint any persons (whether Noteholders or not) as a committee or
committees to represent the interests of the Noteholders and to confer upon
such committee or committees any powers or discretions which the
Noteholders could themselves exercise by Extraordinary Resolution.
17. EXTRAORDINARY RESOLUTION BINDING ON ALL NOTEHOLDERS
An Extraordinary Resolution passed at a meeting of the Noteholders duly
convened and held in accordance with this instrument shall be binding upon
all the Noteholders whether present or not at such meeting and each of the
Noteholders shall be bound to give effect thereto accordingly. The passing
of any such resolution shall be conclusive evidence that the circumstances
of any such resolution justify the passing thereof.
18. DEFINITION OF EXTRAORDINARY RESOLUTION
The expression "EXTRAORDINARY RESOLUTION" when used in this instrument
means a resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions contained herein by a majority
consisting of not less than 51 per cent of the persons voting thereat upon
a show of hands or, if a poll is demanded, then by a majority consisting of
not less than 51 per cent of the votes cast thereon.
19. MINUTES OF MEETINGS
Minutes of all resolutions and proceedings at every meeting shall be made
and duly entered in books to be from time to time provided for that purpose
by the Company and any such minutes, if they purport to be signed by the
chairman of the meeting at which such resolutions were passed or
proceedings were transacted or by the chairman of the next succeeding
meeting of the Noteholders, shall be conclusive evidence of the matters
therein contained and, until the contrary is proved, every meeting in
respect of which minutes of the proceedings have been made and signed as
aforesaid shall be deemed to have been duly held and convened and all
resolutions passed or proceedings transacted thereat to have been duly
passed and transacted.
20. CORPORATE REPRESENTATIVES
Any company or corporation which is a holder of Notes may by resolution of
its directors or other governing body authorise any person to act as its
representative at any meeting of Noteholders and such representative shall
be entitled to exercise the same powers on behalf of the company or
corporation which he represents as if he were the holder of Notes.
21. RESOLUTIONS IN WRITING
A resolution in writing proposed by the Company and signed by the holders
of not less than 51 per cent in nominal amount of the Notes then in issue
(other than Notes held by or for the account of the Company) shall have
effect in the same manner as an
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Extraordinary Resolution of Noteholders duly passed at a meeting duly
convened and held. Such resolution in writing may be contained in one
document or in several documents in like form, each signed by one or more
Noteholders.
22. CONSENT OF COMPANY
Notwithstanding anything in this instrument to the contrary, no resolution
shall be effective which would increase any obligation of the Company under
the instrument without the written consent of the Company.
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CONTENTS
Clause Page
1. INTERPRETATION 1
2. COVENANT TO COMPLY WITH THE TERMS OF THE NOTES 3
3. AMOUNT OF THE NOTES 3
4. ALLOTMENT AND PAYMENT UP OF THE NOTES 3
5. INTEREST 3
6. REPAYMENT 3
7. STATUS OF THE NOTES AND SUBORDINATION 4
8. CONVERSION 4
9. REGISTER 4
10. TRANSFER 4
11. NOTE CERTIFICATES 4
12. NOTICES 5
13. MODIFICATION OF RIGHTS 5
14. GOVERNING LAW 5
SCHEDULE 1
Form of Note 7
SCHEDULE 2
The Conditions 9
SCHEDULE 3
Provisions as to the Register 14
SCHEDULE 4
Provisions for Meetings of Noteholders 18
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