Exhibit 4.1
COMPANIES ACTS, 1963 TO 2001
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
SMARTFORCE PUBLIC LIMITED COMPANY
(as amended by Special Resolutions passed
on 24th March 1992, 31st March 1995, 28th April 1998,
26th January 2000, 10th July 2001 and 6th September 2002)
1. The name of the Company is SMARTFORCE PUBLIC LIMITED COMPANY.
2. The Company is to be a public limited company.
3. The objects for which the Company is established are:
(1) (a) To acquire and hold shares and stocks of any class or
description, debentures, debenture stock, bonds, bills, mortgages,
obligations, investments and securities of all descriptions and of
any kind issued or guaranteed by any company, corporation or
undertaking of whatever nature and wheresoever constituted or
carrying on business or issued or guaranteed by any government,
state, dominion, colony, sovereign ruler, commissioners, trust,
public, municipal, local or other authority or body of whatsoever
nature and wheresoever situated and investments, securities and
property of all descriptions and of any kind, including real and
chattel real estate, mortgages, reversions, assurances policies,
contingencies and choses in action. To purchase for investment only
property of any tenure and any interest therein, and to make
advances upon the security of land or other similar property or any
interest therein.
(b) To carry on any other trade or business whatsoever which can in
the opinion of the directors be advantageously or conveniently
carried on by the Company in connection with or as ancillary to any
of the above businesses or the general business of the Company.
(2) To carry on the business of surveyors, estate agents, valuers,
auctioneers, carriers, shippers, fowarding agents, garagement,
caterers, licensed publicans, fuel suppliers, textile manufacturers
and dealers, insurance agents and brokers, farmers and generally to
import, export, manufacture, make, grow, produce, repair, adapt for
sale and prepare for market goods and materials of every kind, or
otherwise to carry on any business which may seem to the Company
capable of being conveniently carried on in connection with the
above or any one of the above or calculated directly or indirectly
to enhance the value of or render more profitable any of the
Company's property or rights.
(3) To acquire by purchase, exchange, lease, fee farm grant or
otherwise, either for an estate in fee simple or for any less estate
or other estate or interest whether immediate or reversionary and
whether vested or contingent, any lands, tenements or hereditaments
of any tenure, whether subject or not to any charges or
encumbrances, and to hold, farm, work and manage and to let, sublet,
either furnished or unfurnished, mortgage or charge land and
buildings of any kind, reversions, interests, annuities, life
policies, and any other property real or personal, movable or
immovable, either absolutely or conditionally, and either subject or
not to any mortgages, charges, ground rent or other rents or
encumbrances.
(4) To hold and farm and work or manage or to sell, let, licence,
alienate, mortgage, lease or charge land, house property, shops,
flats, maisonettes, reversions, interests, annuities, life policies,
and any other property real or personal, movable or immovable,
either absolutely or conditionally, and either subject to or not to
any mortgage, charge, rent or encumbrance and to pay for any lands,
tenements, hereditaments, chattels, or assets acquired by the
Company in cash or shares, stock, debentures or obligations of the
Company whether fully paid or otherwise or in any other manner.
(5) To enter into contracts of every nature and kind and to carry on the
business of a trust and investment company and to invest the funds
of the Company in or upon or otherwise acquire, hold and deal in
property, securities, stocks, shares, debentures, interests and
investments of every nature and description and to hold, serve,
exchange, and otherwise deal in
such properties and investments, and receive income therefrom, and
to borrow for investment purposes, and to place the funds of the
Company on deposit with bankers or financial or mercantile houses or
companies and withdraw same therefrom, and to enter into hire
purchase, credit sales and other deferred payment arrangements.
(6) To acquire shares, stocks, debentures, debenture stock, bonds,
obligations as securities either by original subscription, tender,
purchase, exchange or otherwise, and to subscribe for the same
either conditionally or otherwise, to guarantee and to write
descriptions thereof and to exercise and enforce all rights and
powers conferred by or incidental to the ownership thereof.
(7) To act as agents or managers in carrying on any business concerns or
undertakings and to employ experts to investigate and examine the
condition, management, prospects, value and circumstances of any
business concerns and undertakings and generally of any assets,
property or rights of any kind.
(8) To apply for, purchase or otherwise acquire and protect, prolong,
renew, whether in Ireland or elsewhere any patents, patent rights,
brevets d'invention, licences, protection, concessions and the like,
conferring any exclusive or non-exclusive or limited right to use,
or any secret or other information as to any invention, process or
privilege which may seem capable of being used for any of the
purposes of the Company or the acquisition of which may seem
calculated directly or indirectly to benefit the Company, and to
use, exercise, develop, manufacture under or grant licences or
privilege in respect thereof or otherwise turn to account the
property, rights, privileges and information so acquired, and to
carry on any business in any way connected therewith, and to expend
money in experimenting upon and testing, and in improving or seeking
to improve any patents, inventions, systems, programmes, computing
or other machines or rights which the Company may acquire or propose
to acquire.
(9) To raise or borrow money, and to secure the payment of money by the
issue of or upon debentures or debenture stock, perpetual,
terminable or otherwise or bonds or other obligations, charged or
not charged upon or by
mortgage, charge, hypothecation, lien or pledge of the whole or any
part of the undertaking property, assets and rights of the Company,
both present and future, including its uncalled capital and
generally in such other manner and on such terms as may seem
expedient, and to issue any of the Company's securities, for such
consideration and on such terms as may be thought fit, including the
power to pay a proportion of the profits of the Company by way of
interest on any monies so raised or borrowed; and also by a similar
mortgage, charge, hypothecation, lien or pledge, to secure and
guarantee the performance by the Company of any obligation or
liability it may undertake; and to redeem or pay off any such
securities aforesaid.
(10) To draw, make, accept, endorse, discount, execute and issue
promissory notes, bills of exchange, bills of lending, warrants,
debentures and other negotiable or transferable instruments.
(11) To guarantee, support or secure, whether by personal 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 all such methods, the performance of the obligations of and the
repayment or payment of the principal amounts and interest of any
person, firm or company or the dividends or interest of any
securities, including (without prejudice to the generality of the
forgoing) any company which is the Company's holding company or a
subsidiary or associated company.
(12) To acquire and undertake the whole or any part of the business,
property, goodwill and assets of any person, firm or company
carrying on or proposing to carry on any of the businesses which the
Company is authorised to carry on, or which can be conveniently
carried on in connection with the same, or may seem calculated
directly or indirectly to benefit the Company, or possessed of
property suitable for the purposes of the Company and as part of the
consideration for any of the acts or things aforesaid or property
acquired 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 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 issue 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.
(13) To enter into partnership or into any arrangement for sharing
profits, union of interest, a joint adventure, reciprocal
concession, co-operation or otherwise with any company carrying on
or engaged in any business or transaction which the Company is
authorised to carry on or engaged in, or any business or transaction
capable of being conducted so as directly or indirectly to benefit
the Company, and to lend money to, guarantee the contracts or
debentures of or otherwise assist any such companies, and to take or
otherwise acquire and hold shares or stock in or securities of, and
to subsidise or otherwise assist any such company and to sell, hold,
re-issue, with or without guarantee, or otherwise deal with such
shares, stocks or securities.
(14) To undertake the office of trustee, executor, administrator,
committee, manager, secretary, registrar, attorney, delegate,
substitute or treasurer, and any other offices or situations of
trust or confidence, and to perform and discharge the duties and
functions incidental thereto, and generally to transact all kinds of
trust and agency business either gratuitously or otherwise.
(15) To take part in the creation, issue or conversion of debentures,
debenture stock, bonds, obligations, shares, stocks or securities,
and to act as trustees in connection with any such securities and to
take part in the conversion of business concerns and undertakings
into companies.
(16) To take part in the management, supervision or control of the
business or operations of any company or undertaking, and for that
purpose to appoint and remunerate any Directors, Accountants or
other experts or agents.
(17) To carry on and undertake any business, transaction or operation
commonly carried on or undertaken by financial agents, factors,
financiers, underwriters, concessionaires, contractors for public
and other works or merchants and to enter into hire purchase, credit
sales, and other agreements providing for payment by instalments or
deferred means.
(18) To apply for, promote and obtain any Act of the Oireachtas,
provisional order or licence of the Minister for Industry and
Commerce or other authority for enabling the Company to carry any of
its objects into effect, or for effecting any modification of the
Company's constitution, or for any other purpose which may seem
expedient, and to oppose any proceedings or applications which may
seem calculated, directly or indirectly, to prejudice the Company's
interests.
(19) To enter into any arrangements with any governments or authorities
(supreme, municipal, local or otherwise), or any corporations,
companies or persons that may seem conducive to the attainment of
the Company's objects, or any of them, and to obtain from any such
government, authority, corporation, company, or person any charters,
contracts, decrees, rights, privileges and concessions which the
Company may think desirable, and to carry out, exercise and comply
with any such arrangements, charters, contracts, decrees, rights,
privileges and concessions.
(20) To subscribe for, take, purchase or otherwise acquire and hold
shares or other interests in, or securities of any other company
having objects altogether or in part similar to those of this
Company or carrying on any business capable of being carried on so
as, directly or indirectly, to benefit this Company.
(21) To promote any company for the purpose of acquiring all or any of
the property or 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 or render more profitable any
property, assets or business of the Company, or for any other
purpose which may seem directly or indirectly calculated to benefit
the Company.
(22) To guarantee the payments of dividends or interest on any stocks,
shares, debentures or other securities issued by, or any other
contract or obligation of any company, societe anonyme, association,
undertaking or public or private body and the performance of
contracts by or become security for members of any company having
dealings with the Company.
(23) To accumulate capital for any of the purposes of the Company, and to
appropriate any of the Company's assets to specific purposes, either
conditionally or unconditionally and to admit any class or section
of those who have any dealings with the Company to any share in the
profits thereof or in the profits of any particular branch of the
Company's business, or to any other special rights, privileges,
advantages or benefits.
(24) To apply for and obtain any legislative, municipal or other acts or
authorisations for enabling the Company to carry any of its objects
into effect or for any extension or alteration of its powers, or for
effecting any modification of the Company's constitution, or for any
other purpose which may seem expedient, and to oppose any
proceedings, or applications which may seem calculated directly or
indirectly to prejudice the Company's interest.
(25) To apply for and obtain all such licences, consents, authorities,
grants, permissions and concessions as may be required, or deemed to
be desirable, in connection with the running or administration of
the Company's business or otherwise in relation to its affairs.
(26) To advance and lend money, with or without security to such persons
or companies and upon such terms and subject to such conditions as
may seem expedient.
(27) To create, maintain, invest and deal with any reserve or sinking
funds for redemption of obligations of the Company, or for
depreciation of works or stock, or any other purpose of the Company.
(28) To remunerate any person, firm or company rendering services to this
Company, either by cash payment or by the allotment to him or them
of
shares or securities of the Company credited as paid up in full or
in part or otherwise as may be thought expedient.
(29) To effect assurance and insurance contracts and policies of every
description, provided that nothing herein contained shall empower
the Company to carry on a business of insurance in the meaning of
the Insurance Acts, 1909 to 1989.
(30) To sell or otherwise dispose of the whole or any part of the
business or property of the Company, either together or in portions,
for such consideration as the Company may think fit, and in
particular for shares, debentures or securities of any company
purchasing the same.
(31) To distribute either upon a distribution of assets or a division of
profits among the members of the Company in kind any property of the
Company, and in particular any shares, debentures or securities of
other companies belonging to this Company, or of which this Company
may have the power of disposing.
(32) To establish, join, support and subscribe to, or to aid in the
establishment and support of associations, institutions, societies,
co-operatives, clubs, funds, trusts or conveniences calculated to
benefit the Company or employees or ex-employees of the Company or
the dependants or connections of such persons or connected with any
town or place where the Company carries on business and to grant
pensions, gratuities, allowances or charitable aid to any person who
may have served the Company, or to the wives, children or other
relatives of such person and to make payments towards insurance, and
to form and contribute to provident and benefit funds for the
benefit of any persons employed by the Company and to subscribe or
guarantee money for charitable or benevolent objects or for any
exhibition or for any public general or useful object.
(33) To support and subscribe to any charitable or public object, and any
institution, society or club which may be for the benefit of the
Company
or its employees, or may be connected with any town or place where
the Company carries on business.
(34) To make gifts or grant bonuses to officers or other persons who are
or have been in the employment of the Company and to allow any such
persons to have the use and enjoyment of such property, chattels or
other assets belonging to the Company upon such terms as the Company
shall think fit.
(35) To insure the life of any persons who may, in the opinion of the
Company, be of value to the Company, as having or holding for the
Company interests, goodwill, or influence or otherwise and to pay
the premiums on such insurance.
(36) To promote freedom of contract and to resist, insure against,
counteract and discourage interference therewith, to join any lawful
federation, union, association or party and to contribute to the
funds thereof or do any other lawful act or thing with a view to
preventing or resisting directly or indirectly any interruption of
or interference with the Company or any other trade or business or
providing or safeguarding against the same, or resisting or opposing
any strike movement or organisation which may be thought detrimental
to the interests of the Company or it employees, and to subscribe to
any association for funds for any such purposes.
(37) To procure the Company to be registered or recognised in any foreign
country, colony, dependency or place.
(38) To pay all or any expenses of, incidental to or incurred in
connection with the formation and incorporation of the Company and
the raising of its share and loan capital, or to contract with any
person or company to pay the same, and (except for the case of
shares subject to the provisions of any statute for the time being
in force) to pay commissions to brokers and others for underwriting,
placing, selling or guaranteeing the subscription of any shares,
debentures or securities of the Company.
(39) To do all or any of the above things in any part of the world, and
as principals, agents, contractors, trustees or otherwise, and
either by or through trustees, agents, subcontractors or otherwise
and either alone or in partnership or conjunction with any person or
company, and to contract for the carrying on of any operation
connected with the Company's business by any person or company.
(40) To carry on any other trade or business whatsoever which can in the
opinion of the board of directors be advantageously carried on by
the Company in connection with or as ancillary to any of the above
businesses or the general business of the Company.
(41) To do all such other things as may be deemed incidental or conducive
to the attainment of the above objects or any of them.
And it is hereby declared that in the construction of this clause the word
"company" except where used in reference to this Company, shall be deemed
to include any person or partnership or other body or persons, whether
incorporated or not incorporated and whether domiciled in Ireland or
elsewhere, and words denoting the singular number only shall include the
plural number and vice versa.
The objects set forth in any sub-clause of this clause shall not be
restrictively construed but the widest interpretation shall be given
thereto and they shall not except where the context expressly so requires
in such sub-clause, be in any way limited to or restricted by reference to
or inference from any other object or objects set forth in such sub-clause
or from the terms of any other sub-clause or by the name of the Company.
None of such sub-clauses or the object or objects therein specified for
the powers thereby conferred shall be deemed subsidiary or auxiliary to
the objects or powers mentioned in any other sub-clause, but the Company
shall have full power to exercise all or any of the powers and to achieve
or endeavour to achieve all or any of the objects conferred by and
provided in any one or more of the said sub-clauses.
4. The liability of the members is limited.
5. The share capital of the Company is E27,500,000 divided into 250,000,000
ordinary shares of E0.11 each. The share capital of the Company whether the
original or any increased capital of the Company may be divided into different
classes of shares with any special, qualified, preferred, deferred or other
rights or privileges or conditions as to capital, dividends, rights of voting or
other matters attached thereto, and from time to time the Company's regulations
may be varied so far as may be necessary to give effect to any such rights,
privileges or conditions.
We, the several persons, whose names, addresses and descriptions are subscribed,
wish to be formed into a company in pursuance of this Memorandum of Association,
and we agree to take the number of shares in the capital of the Company set
opposite our respective names.
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NAMES, ADDRESSES AND DESCRIPTIONS NUMBER OF SHARES TAKEN
OF SUBSCRIBERS BY EACH SUBSCRIBER
- ------------------------------------------------------------------------
Bridget Trant,
Highdown Hill,
Newcastle,
Co. Dublin
Formations Manager One Share
Susan Lawless,
14 Springhill Park,
Blackrock,
County Dublin
Systems Manager One Share
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Total Shares Taken: Two
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Dated this 25th day of July 1989
Witness to the above signatures: Geraldine Reynolds
39 Birchwood Heights
Tallaght,
Dublin 24
Secretary
INDEX
No. Description Pages
PART I - PRELIMINARY
1. Interpretation 17
PART II - SHARE CAPITAL AND RIGHTS
2. Share Capital 19
3. Rights of Shares on Issue 19
4. Redeemable Shares 19
5. Purchase of Own Shares 19
6. Variation of Rights 19
7. Trusts not Recognised 20
8. Allotment of Shares 20
9. Payment of Commission 20
10. Financial Assistance 20
PART III - SHARE CERTIFICATES
11. Issue of Certificates 21
12. Balance and Exchange Certificates 21
13. Renewal of Certificates 21
PART IV - LIEN ON SHARES
14. Extent of Lien 21
15. Power of Sale 22
16. Power to Effect Transfer 22
17. Proceeds of Sale 22
PART V - CALLS ON SHARES AND FORFEITURE
18. Making of Calls 22
19. Time of Call 23
20. Liability of Joint Holders 23
21. Interest on Calls 23
22. Instalments Treated as Calls 23
23. Power to Differentiate 23
24. Notice Requiring Payment 24
25. Forfeiture 24
26. Power of Disposal 24
27. Effect of Forfeiture 24
28. Statutory Declaration 25
PART VI - TRANSFER OF SHARES
29. Instrument of Transfer 25
30. Refusal to Register Transfer 25
31. Procedure on Refusal 25
32. Closing of Transfer Books 26
33. Absence of Registration Fees 26
34. Retention of Transfer Instruments 26
PART VII - TRANSMISSION OF SHARES
35. Death of Member 26
36. Transmission on Death or Bankruptcy 26
37. Rights before Registration 26
PART VIII - ALTERATION OF SHARE CAPITAL
38. Increase of Capital 27
39. Consolidation, Sub-Division and
Cancellation of Capital 27
40. Fractions on Consolidation 27
41. Reduction of Capital 28
PART IX - GENERAL MEETINGS
42. Annual General Meeting 28
43. Extraordinary General Meeting 28
44. Convening General Meetings 28
45. Notice of General Meetings 28
PART X - PROCEEDINGS AT GENERAL MEETINGS
46. Quorum for General Meetings 29
47. Chairman of General Meetings 29
48. Directors and Auditors Right to Attend
General Meetings 30
49. Adjournment of General Meetings 30
50. Determination of Resolutions 30
51. Entitlement to Demand a Poll 30
52. Taking of a Poll 31
53. Written Resolution of Members 31
54. Votes of Members 32
55. Chairman's Casting Vote 32
56. Voting by Joint Holders 32
57. Voting by Incapacitated Holders 32
58. Default in Payment of Calls 32
59. Time for Objection to Voting 33
60. Proxy Voting 33
61. Deposit of Proxy Instruments 33
62. Effect of Proxy Instruments 33
63. Effect of Revocation of Proxy 34
PART XI - DIRECTORS
64. Number of Directors 34
65. Ordinary Remuneration of Directors 34
66. Special Remuneration of Directors 34
67. Expenses of Directors 35
68. Shareholding Qualification 35
69. Alternate Directors 35
PART XII - POWERS OF DIRECTORS
70. Director's Powers 36
71. Power to Delegate 36
72. Appointment of Attorneys 36
73. Local Management 37
74. Borrowing Powers 37
PART XIII - APPOINTMENT, RETIREMENT AND DISQUALIFICATION OF DIRECTORS
75. Eligibility for Appointment 39
76. Appointment of Additional Directors 39
77. Retirement by Rotation 39
78. Disqualification of Directors 40
PART XIV - DIRECTORS' OFFICERS AND INTERESTS
79. Executive Officers 41
80. Directors' Interests 41
81. Restriction on Director's Voting 42
82. Entitled to Grant Pensions 43
PART XV - PROCEEDINGS OF DIRECTORS
83. Regulation and Convening of Directors'
Meetings 44
84. Voting at Directors' Meetings 44
85. Quorum for Directors' Meetings 44
86. Telecommunication Meetings 45
87. Chairman of Board of Directors 45
88. Validity of Acts of Directors 45
89. Directors' Resolutions in Writing 45
PART XVI - THE SECRETARY
90. Appointment of Secretary 46
91. Assistant Secretary 46
PART XVII - THE SEAL
92. Use of Seal 46
93. Seal for Use Abroad 46
94. Signature of Sealed Instruments 46
PART XVIII - DIVIDENDS AND RESERVES
95. Declaration of Dividends 47
96. Interim and Fixed Dividends 47
97. Payment of Dividends 47
98. Deductions from Dividends 48
99. Dividends in Specie 48
100. Payment of Dividends by Post 48
101. Dividends Not to Bear Interest 48
102. Payment to Holders on a Particular Date 49
103. Unclaimed Dividends 49
PART XIX - CAPITALISATION OF PROFITS OR RESERVES
104. Capitalisation of Distributable
Profits and Reserves 49
105. Capitalisation of Non-Distributable
Profits and Reserves 49
106. Implementation of Capitalisation Issues 50
PART XX - NOTICES
107. Notice in Writing 50
108. Service of Notices 50
109. Service on Joint Holders 52
110. Service on Transfer or Transmission
of Shares 52
111. Signature to Notices 52
112. Deemed Receipt of Notices 52
PART XXI - WINDING UP
113. Distribution on Winding up 52
114. Distribution in Specie 53
PART XXII - MISCELLANEOUS
115. Inspection of Books Etc. by Members 53
116. Destruction of Records 53
117. Untraced Shareholders 54
118. Indemnity 55