EXHIBIT 4.2
COMPANIES ACTS, 1963 TO 2001
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
SMARTFORCE PUBLIC LIMITED COMPANY
(adopted by a special resolution passed on 31st March 1995
and amended by special resolutions passed
on 6th July 1995, 28th April 1998, 26th January 2000, 10th July 2001
and 6th September 2002)
PART I - PRELIMINARY
1. INTERPRETATION
(a) The Regulations contained in Table A in the First Schedule to the
Companies Act 1963 shall not apply to the Company.
(b) In these Articles the following expressions shall have the following
meanings:
"the Acts" the Companies Acts 1963 to 1990 including
any statutory modification or
re-enactment thereof for the time being
in force
"these Articles" these Articles of Association as from
time to time altered by resolution of the
Company
"the Auditors" the auditors for the time being of the
Company
"Board" the board of directors for the time
being of the Company
"clear days" in relation to the period of a
notice, that period excluding the day the
notice is given, the day the notice is
deemed to be received and the day for
which it is given or on which it is to
take effect
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"the Directors" the directors for the time being
of the Company or the directors
present at a meeting of the Board of
directors and includes any person
occupying the position of director by
whatever name called
"the holder" in relation to any share the member whose
name is entered in the Register as the
holder of the share
"the Office" the registered office for the time being
of the Company
"the Ordinary ordinary shares of EURO0.11 each in the
Shares" capital of the Company
"the Register" the register of members to be kept as
required by the Acts
"the Seal" the common seal of the Company or
(where relevant) the official
securities seal kept by the Company
pursuant to the Acts
"the Secretary" any person appointed to perform the
duties of the secretary of the Company
"the State" the Republic of Ireland
(c) Expressions referring to writing shall, unless the contrary intention
appears, be construed as including references to printing,
lithography, photography and any other modes of representing or
reproducing words in a visible form. The expression "executed" shall
include any mode of execution whether under seal or under hand.
(d) Unless specifically defined herein or the context otherwise requires,
words or expressions contained in these Articles shall bear the same
meaning as in the Acts but excluding any statutory modification
thereof not in force upon the date of adoption of these Articles.
(e) Reference to Articles are to Articles of these Articles. The headings
and captions included in these Articles are inserted for convenience
of reference only and shall not be considered a part of or affect the
construction or interpretation of these Articles.
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PART II - SHARE CAPITAL AND RIGHTS
2. SHARE CAPITAL
The share capital of the Company is EURO27,500,000 divided into
250,000,000 Ordinary Shares of EURO0.11 each.
3. RIGHTS OF SHARES ON ISSUE
Without prejudice to any special rights conferred on the holders of
any existing shares or class of shares and subject to the provisions
of the Acts any share may be issued with such rights or restrictions
as the Company may by ordinary resolution determine.
4. REDEEMABLE SHARES
Subject to the provisions of the Acts redeemable shares may be issued
by the Company and redeemed accordingly.
5. PURCHASE OF OWN SHARES
Subject to the provisions of the Acts the Company may purchase its
own shares (including any redeemable shares) and enter into a
contingent purchase contract for the purchase of its shares.
6. VARIATION OF RIGHTS
(a) Whenever the share capital of the Company is divided into different
classes of shares, the rights attaching to any class may be varied or
abrogated with the consent in writing of the holders of three-fourths
of the issued shares of that class, or with the sanction of a special
resolution passed at a separate general meeting of the holders of the
shares of that class and may be so varied or abrogated either whilst
the Company is a going concern or during or in contemplation of a
winding-up.
(b) Unless otherwise provided by the rights attaching to any shares, the
rights attaching to any shares shall be deemed to be varied by the
reduction of the capital paid up on those shares and by the allotment
of further shares ranking in priority for payment of a dividend or in
respect of capital or which confer on the holders voting rights more
favourable than those conferred by such first mentioned shares, but
shall not otherwise be deemed to be varied by the creation or issue
of further shares.
(c) To every separate general meeting of the holders of shares of any
class all the provisions of these Articles relating to general
meetings of the Company or to the proceedings thereat shall, mutatis
mutandis, apply, except that in respect of any class
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where all of the shares are held by only one shareholder then for the
purposes of a general meeting of the holders of shares of that class
the necessary quorum shall be one person and in all other cases the
necessary quorum shall be two persons at least present in person or
by proxy and holding or representing by proxy one-third in nominal
amount of the issued shares of the class of shares (but so that if at
any adjourned meeting of such holders a quorum as above defined is
not present, those members who are present in person or by proxy
shall be a quorum), and that any holder of shares of the class
present in person or by proxy may demand a poll and that the holders
of shares of the class shall, on a poll, have one vote in respect of
every share of the class held by them respectively.
7. TRUSTS NOT RECOGNISED
Except as required by law, no person shall be recognised by the
Company as holding any share upon any trust and the Company shall not
be bound by or be compelled in any way to recognise (even when having
notice thereof) any equitable, contingent, future or partial interest
in any share or any interest in any fractional part of a share or
(except only as by these Articles or by law otherwise provided) any
other rights in respect of any share except an absolute right to the
entirety thereof in the holder. This shall not preclude the Company
from requiring the members or a transferee of shares to furnish the
Company with information as to the beneficial ownership of any share
when such information is reasonably required by the Company.
8. ALLOTMENT OF SHARES
No allotment of shares shall be made which would result in a change
in control of the Company unless such allotment has first been
approved by the shareholders of the Company in general meeting.
9. PAYMENT OF COMMISSION
The Company may exercise the powers of paying commissions conferred
by the Acts. Subject to the provisions of the Acts, any such
commission may be satisfied by the payment of cash or by the
allotment of fully or partly paid shares or partly in one way and
partly in the other. The Company may also, on any issue of shares,
pay such brokerage as may be lawful.
10. FINANCIAL ASSISTANCE
Except as provided in these Articles or as permitted by the Acts, the
Company shall not give, whether directly or indirectly and whether by
means of a loan, guarantee, the provision of security or otherwise,
any financial assistance for the purpose of or in
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connection with a purchase or subscription made or to be made by any
person for any shares in the Company or in its holding company.
PART III - SHARE CERTIFICATES
11. ISSUE OF CERTIFICATES
Every member shall be entitled without payment to one certificate for
all the shares of each class held by him or several certificates each
for one or more of his shares upon payment for every certificate
after the first of such reasonable sum as the Directors may determine
provided that the Company shall not be bound to issue more than one
certificate for shares held jointly by several persons and delivery
of a certificate to one joint holder shall be a sufficient delivery
to all of them. Every certificate shall be sealed with the Seal and
shall specify the number, class and distinguishing numbers (if any)
of the shares to which it relates and the amount or respective
amounts paid up thereon.
12. BALANCE AND EXCHANGE CERTIFICATES
(a) Where some only of the shares comprised in a share certificate are
transferred the old certificate shall be cancelled and a new
certificate for the balance of such shares shall be issued in lieu
without charge.
(b) Any two or more certificates representing shares of any one class
held by any member may at his request be cancelled and a single new
certificate for such shares issued in lieu without charge. If any
member shall surrender for cancellation a share certificate
representing shares held by him and request the Company to issue in
lieu two or more share certificates representing such shares in such
proportions as he may specify, the Directors may, if they think fit,
comply with such request.
13. RENEWAL OF CERTIFICATES
If a share certificate is defaced, worn-out, lost, stolen or
destroyed, it may be renewed on such terms (if any) as to evidence
and indemnity and payment of the expenses incurred by the Company in
investigating evidence as the Directors may determine but otherwise
free of charge and (in the case of defacement or wearing-out) on
delivery of the old certificate.
PART IV - LIEN ON SHARES
14. EXTENT OF LIEN
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The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys (whether presently payable
or not) payable at a fixed time or called in respect of that share.
The Directors may at any time declare any share to be wholly or in
part exempt from the provisions of this Article. The Company's lien
on a share shall extend to all moneys payable in respect of it.
15. POWER OF SALE
The Company may sell in such manner as the Directors determine any
share on which the Company has a lien if a sum in respect of which
the lien exists is presently payable and is not paid within fourteen
clear days after notice demanding payment (and stating that if the
notice is not complied with the shares may be sold) has been given to
the holder of the share or to the person entitled to it by reason of
the death or bankruptcy of the holder.
16. POWER TO EFFECT TRANSFER
To give effect to a sale the Directors may authorise some person to
execute an instrument of transfer of the shares sold to, or in
accordance with the directions of, the purchaser. The transferee
shall be entered in the Register as the holder of the shares
comprised in any such transfer and he shall not be bound to see to
the application of the purchase moneys nor shall his title to the
shares be affected by any irregularity in or invalidity of the
proceedings in reference to the sale.
17. PROCEEDS OF SALE
The proceeds of the sale, after payment of the costs, shall be
applied in payment of so much of the sum for which the lien exists as
is presently payable and any residue shall (upon surrender to the
Company for cancellation of the certificate for the shares sold and
subject to a like lien for any moneys not presently payable as
existed upon the shares before the sale) be paid to the person
entitled to the shares at the date of the sale.
PART V - CALLS ON SHARES AND FORFEITURE
18. MAKING OF CALLS
Subject to the terms of allotment, the Directors may make calls upon
the members in respect of any moneys unpaid on their shares (whether
in respect of nominal value or premium) and each member shall
(subject to receiving at least fourteen clear days' notice specifying
when and where payment is to be made) pay to the Company as required
by the notice the amount called on his shares. A call may be required
to be
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paid by instalments. A call may, before receipt by the Company of a
sum due thereunder, be revoked in whole or in part and payment of a
call may be postponed in whole or in part. A person upon whom a call
is made shall remain liable for calls made upon him notwithstanding
the subsequent transfer of the shares in respect whereof the call was
made.
19. TIME OF CALL
A call shall be deemed to have been made at the time when the
resolution of the Directors authorising the call was passed.
20. LIABILITY OF JOINT HOLDERS
The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
21. INTEREST ON CALLS
(a) If a call remains unpaid after it has become due and payable the
person from whom it is due and payable shall pay interest on the
amount unpaid from the day it became due until the day it is paid at
the rate fixed by the terms of allotment of the share or in the
notice of the call or, if no rate is fixed, at the appropriate rate
(as defined by the Companies (Amendment) Act 1983) but the Directors
may waive payment of the interest in whole or in part.
(b) The Directors may, if they think fit, receive from any member willing
to advance the same, all or any part of the moneys uncalled and
unpaid upon any shares held by him and upon all or any of the moneys
so advanced may (until the same would, but for such advance, become
payable) pay interest at such rate not exceeding (unless the Company
in general meeting otherwise directs) 5 per cent per annum, as may be
agreed upon between the Directors and the member paying such sum in
advance.
22. INSTALMENTS TREATED AS CALLS
An amount payable in respect of a share on allotment or at any fixed
date, whether in respect of nominal value or premium or as an
instalment of a call, shall be deemed to be a call and if it is not
paid the provisions of these Articles shall apply as if that amount
had become due and payable by virtue of a call.
23. POWER TO DIFFERENTIATE
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Subject to the terms of allotment, the Directors may make
arrangements on the issue of shares for a difference between the
holders in the amounts and times of payment of calls on their shares.
24. NOTICE REQUIRING PAYMENT
If a call remains unpaid after it has become due and payable the
Directors may give the person from whom it is due not less than
fourteen clear days notice requiring payment of the amount unpaid
together with any interest which may have accrued. The notice shall
name the place where 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.
25. FORFEITURE
If the notice is not complied with any share in respect of which it
was given may, before the payment required by the notice has been
made, be forfeited by a resolution of the Directors and the
forfeiture shall include all dividends or other moneys payable in
respect of the forfeited share and not paid before the forfeiture.
The Directors may accept a surrender of any share liable to be
forfeited hereunder.
26. POWER OF DISPOSAL
Subject to the provisions of the Acts, a share forfeited (or
surrendered in lieu thereof) may be sold, re-allotted or otherwise
disposed of on such terms and in such manner as the Directors may
determine either to the person who was before forfeiture the holder
thereof or to any other person and at any time before any such sale,
re-allotment or other disposition, the forfeiture may be cancelled on
such terms as the Directors may think fit. Where for the purposes of
its disposal such a share is to be transferred to any person the
Directors may authorise some person to execute an instrument of
transfer of the share to that person.
27. EFFECT OF FORFEITURE
A person any of whose shares have been forfeited or surrendered shall
cease to be a member in respect of them and shall deliver to the
Company for cancellation the certificate(s) for the shares forfeited
or surrendered but shall remain liable to pay to the Company all
moneys which at the date of forfeiture or surrender were payable by
him to the Company in respect of those shares with interest at the
rate at which interest was payable on those moneys before the
forfeiture or, if no interest was so payable, at the appropriate rate
(as defined in the Acts) from the date of forfeiture or surrender
until the date of payment but the Directors may waive payment in
whole or
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in part or enforce payment without any allowance for the value of the
shares at the time of forfeiture or surrender or for any
consideration received on their disposal.
28. STATUTORY DECLARATION
A statutory declaration by a Director or the Secretary that a share
has been forfeited or surrendered on a specified date shall be
conclusive evidence of the facts stated in it as against all persons
claiming to be entitled to the share and the declaration shall
(subject to the execution of an instrument of transfer if necessary)
constitute a good title to the share and the person to whom the share
is disposed of shall be registered as the holder of the share and
shall not be bound to see to the application of the consideration, if
any, nor shall his title to the share be affected by any irregularity
in or invalidity of the proceedings in reference to the forfeiture,
surrender, sale, re-allotment or other disposal of the share.
PART VI - TRANSFER OF SHARES
29. INSTRUMENT OF TRANSFER
The instrument of transfer of any share shall be in writing in any
usual form or in any other form which the Directors may approve. Any
instrument of transfer shall be executed by or on behalf of the
transferor and (except in the case of fully paid shares) by the
transferee.
30. REFUSAL TO REGISTER TRANSFER
(a) The Directors may, in their absolute discretion and without giving
any reason therefor, refuse to register the transfer of a share not
being a fully paid share.
(b) The Directors may also refuse to register any transfer (whether or
not it is in respect of a fully paid share) unless:
(i) it is lodged at the Office or at such other place as the
Directors may appoint and is accompanied by the certificate
of the shares to which it relates and such other evidence
as the Directors may reasonably require to show the right
of the transferor to make the transfer;
(ii) it is in respect of only one class of shares; and
(iii) it is in favour of not more than four transferees.
31. PROCEDURE ON REFUSAL
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If the Directors refuse to register a transfer they shall, within two
months after the date on which the transfer was lodged with the
Company, send to the transferee notice of the refusal.
32. CLOSING OF TRANSFER BOOKS
The registration of transfers of shares or of transfers of any class
of shares may be suspended at such times and for such periods (not
exceeding thirty days in each year) as the Directors may determine.
33. ABSENCE OF REGISTRATION FEES
No fee shall be charged for the registration of any instrument of
transfer or other document relating to or affecting the title to any
share.
34. RETENTION OF TRANSFER INSTRUMENTS
The Company shall be entitled to retain any instrument of transfer
which is registered, but any instrument of transfer which the
Directors refuse to register shall be returned to the person lodging
it when notice of the refusal is given.
PART VII - TRANSMISSION OF SHARES
35. DEATH OF MEMBER
If a member dies the survivor or survivors where he was a joint
holder and his personal representatives where he was a sole holder or
the only survivor of joint holders, shall be the only persons
recognised by the Company as having any title to his interest in the
shares, but nothing herein contained shall release the estate of a
deceased member from any liability in respect of any share which has
been jointly held by him.
36. TRANSMISSION ON DEATH OR BANKRUPTCY
A person becoming entitled to a share in consequence of the death or
bankruptcy of a member may, upon such evidence being produced as the
Directors may properly require, elect either to become the holder of
the share or to have some person nominated by him registered as the
transferee. If he elects to become the holder he shall give notice to
the Company to that effect. If he elects to have another person
registered he shall execute an instrument of transfer of the share to
that person. All of these Articles relating to the transfer of shares
shall apply to the notice or instrument of transfer as if it were an
instrument of transfer executed by the member and the death or
bankruptcy of the member had not occurred.
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37. RIGHTS BEFORE REGISTRATION
A person becoming entitled to a share by reason of the death or
bankruptcy of a member (upon supplying to the Company such evidence
as the Directors may reasonably require to show his title to the
share) shall have the rights to which he would be entitled if he were
the holder of the share, except that he shall not, before being
registered as the holder of the share, be entitled in respect of it
to attend or vote at any meeting of the Company or at any separate
meeting of the holders of any class of shares in the Company, so,
however, that the Directors may at any time give notice requiring any
such person to elect either to be registered himself or to transfer
the share, and if the notice is not complied with within ninety days,
the Directors may thereupon withhold payment of all dividends,
bonuses or other moneys payable in respect of the share until the
requirements of the notice have been complied with.
PART VIII - ALTERATION OF SHARE CAPITAL
38. INCREASE OF CAPITAL
The Company may from time to time by ordinary resolution increase the
share capital by such sum, to be divided into shares of such amount,
as the resolution shall prescribe.
39. CONSOLIDATION, SUB-DIVISION AND CANCELLATION OF CAPITAL
The Company may by ordinary resolution:
(i) consolidate and divide all or any of its share capital into
shares of larger amount;
(ii) subject to the provisions of the Acts, subdivide its shares,
or any of them, into shares of smaller amount (and so that
the resolution whereby any share is sub-divided may
determine that, as between the holders of the shares
resulting from such sub-division, one or more of the
shares may, as compared with the others, have any such
preferred, deferred or other rights or be subject to any
restrictions as the Company has power to attach to unissued
or new shares); or
(iii) 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.
40. FRACTIONS ON CONSOLIDATION
Subject to the provisions of these Articles, whenever as a result of
a consolidation of shares any members would become entitled to
fractions of a share, the Directors may,
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on behalf of those members, either elect to sell the shares
representing the fractions for the best price reasonably obtainable
to any person and distribute the proceeds of sale in due proportion
among those members, and the Directors may authorise some person to
execute an instrument of transfer of the shares to, or in accordance
with the directions of, the purchaser or elect, should they consider
it appropriate, that no payment shall be made in respect of fractions
of shares. The transferee shall not be bound to see to the
application of the purchase money nor shall his title to the shares
be affected by any irregularity in or invalidity of the proceedings
in reference to the sale.
41. REDUCTION OF CAPITAL
The Company may by special resolution reduce its share capital, any
capital redemption reserve fund or any share premium account in any
manner and with and subject to any incident authorised, and consent
required, by law.
PART IX - GENERAL MEETINGS
42. ANNUAL GENERAL MEETING
The Company shall in each year hold a general meeting as its annual
general meeting in addition to any other meeting in that year, and
shall specify the meeting as such in the notice calling it.
43. EXTRAORDINARY GENERAL MEETING
All general meetings other than annual general meetings shall be
called extraordinary general meetings.
44. CONVENING GENERAL MEETINGS
The Directors may convene general meetings. Extraordinary general
meetings may also be convened on such requisitions, or in default,
may be convened by such requisitionists and in such manner as may be
provided by the Acts. If at any time there are not within the State
sufficient Directors capable of acting to form a quorum, any Director
or any two members of the Company may convene an extraordinary
general meeting in the same manner as nearly as possible as that in
which general meetings may be convened by the Directors.
45. NOTICE OF GENERAL MEETINGS
(a) Subject to the provisions of the Acts allowing a general meeting to
be called by shorter notice, an annual general meeting and an
extraordinary general meeting called
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for the passing of a special resolution shall be called by at least
twenty-one clear days notice and all other extraordinary general
meetings shall be called by at least fourteen clear days notice. The
notice shall specify the time and place of the meeting and the
general nature of the business to be transacted. It shall also give
particulars of any Directors who are to retire by rotation or
otherwise at the meeting and of any persons who are recommended by
the Directors for appointment or re-appointment as Directors at the
meeting, or in respect of whom notice has been duly given to the
Company of the intention to propose them for appointment or
re-appointment as Directors at the meeting. Subject to any
restrictions imposed on any shares, notice shall be given to all the
members, to all persons entitled to a share by reason of the death or
bankruptcy of a member, to the Directors and the Auditors.
(b) The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings at the meeting.
PART X - PROCEEDINGS AT GENERAL MEETINGS
46. QUORUM FOR GENERAL MEETINGS
(a) No business other than the appointment of a chairman shall be
transacted at any general meeting unless a quorum of members is
present at the time when the meeting proceeds to business. Except as
provided in relation to an adjourned meeting, three persons entitled
to vote upon the business to be transacted and together holding not
less than one-third of the voting share capital of the Company in
issue, each being a member or a proxy for a member or a duly
authorised representative of a corporate member, shall be a quorum.
(b) If such a quorum is not present within half an hour from the time
appointed for the meeting the meeting shall stand adjourned to the
same day in the next week at the same time and place, or to such time
and place as the Directors may determine. If at the adjourned meeting
such a quorum is not present within half an hour from the time
appointed for the meeting, one person entitled to be counted in a
quorum present at the meeting shall be a quorum.
47. CHAIRMAN OF GENERAL MEETINGS
(a) The chairman of the Board of Directors or, in his absence, the deputy
chairman (if any) or, in his absence, some other Director nominated
by the Directors shall preside as the chairman at every general
meeting of the Company. If at any general meeting
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none of such persons shall be present within fifteen minutes after
the time appointed for the holding of the meeting and willing to act,
the Directors present shall elect one of their number to be the
chairman of the meeting and, if there is only one Director present
and willing to act, he shall be the chairman.
(b) If at any meeting no Director is willing to act as the chairman or if
no Director is present within fifteen minutes after the time
appointed for holding the meeting, the members present shall choose
one of their number to be the chairman of the meeting.
48. DIRECTORS AND AUDITORS RIGHT TO ATTEND GENERAL MEETINGS
A Director shall, notwithstanding that he is not a member, be
entitled to attend and speak at any general meeting and at any
separate meeting of the holders of any class of shares in the
Company. The Auditors shall be entitled to attend any general meeting
and to be heard on any part of the business of the meeting which
concerns them as the Auditors.
49. ADJOURNMENT OF GENERAL MEETINGS
The chairman may, with the consent of a meeting at which a quorum is
present (and shall if so directed by the meeting) adjourn the meeting
from time to time (or sine die) and from place to place, but no
business shall be transacted at any adjourned meeting other than
business which might properly have been transacted at the meeting had
the adjournment not taken place. Where a meeting is adjourned sine
die, the time and place for the adjourned meeting shall be fixed by
the Directors. When a meeting is adjourned for fourteen days or more
or sine die, at least seven clear days' notice shall be given
specifying the time and place of the adjourned meeting and the
general nature of the business to be transacted. Save as aforesaid it
shall not be necessary to give any notice of an adjournment.
50. DETERMINATION OF RESOLUTIONS
At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands unless before, or on the
declaration of the result of, the show of hands a poll is duly
demanded. Unless a poll is so demanded a declaration by the Chairman
that a resolution has 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 minutes of the meeting shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the
resolution. The demand for a poll may, before the poll is taken, be
withdrawn but only with the
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consent of the chairman and a demand so withdrawn shall not be taken
to have invalidated the result of a show of hands declared before the
demand was made.
51. ENTITLEMENT TO DEMAND A POLL
Subject to the provisions of the Acts, a poll may be demanded:
(i) by the chairman of the meeting;
(ii) by at least three members present (in person or by proxy)
having the right to vote at the meeting;
(iii) by any member or members present (in person or by proxy)
representing not less than one-tenth of the total voting
rights of all the members having the right to vote at the
meeting; or
(iv) by a member or members present (in person or by proxy)
holding shares in the Company conferring the 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.
52. TAKING OF A POLL
(a) Except as provided in Article 52(b) a poll shall be taken in such
manner as the chairman directs and he may appoint scrutineers (who
need not be members) and fix a time and place for declaring the
result of the poll. The result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded.
(b) 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 either forthwith or at such time (not being
more than thirty days after the poll is demanded) and place as the
chairman of the meeting may direct. The demand for a poll shall not
prevent the continuance of a meeting for the transaction of any
business other than the question on which the poll was demanded. If a
poll is demanded before the declaration of the result of a show of
hands and the demand is duly withdrawn, the meeting shall continue as
if the demand had not been made.
(c) No notice need be given of a poll not taken forthwith if the time and
place at which it is to be taken are announced at the meeting in
respect of which it is demanded. In any other case at least seven
clear days notice shall be given specifying the time and place at
which the poll is to be taken.
53. WRITTEN RESOLUTION OF MEMBERS
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Subject to section 141 of the Companies Act 1963 a resolution in
writing executed by or on behalf of each member who would have been
entitled to vote upon it if it had been proposed at a general meeting
shall be as valid and effective as if it had been passed at a general
meeting duly convened and held and may consist of several instruments
in the like form each executed 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 shall have effect
accordingly.
54. VOTES OF MEMBERS
Votes may be given either personally or by proxy. Subject to any
rights or restrictions for the time being attaching to any class or
classes of shares, on a show of hands every member present in person
and every proxy shall have one vote, so, however, that no individual
shall have more than one vote and, on a poll, every member shall have
one vote for every share of which he is the holder.
55. CHAIRMAN'S CASTING VOTE
Where there is an equality of votes, whether on a show of hands or on
a poll, the chairman of the meeting at which the show of hands takes
place or at which the poll is demanded, shall be entitled to a
casting vote in addition to any other vote he may have.
56. VOTING BY JOINT HOLDERS
Where there are joint holders of a share, the vote of the senior who
tenders a vote, whether in person or by proxy, in respect of such
share 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 names of the holders stand in the Register.
57. VOTING BY INCAPACITATED HOLDERS
A member of unsound mind, or in respect of whom an order has been
made by any court having jurisdiction (whether in the State or
elsewhere) in matters concerning mental disorder may vote, whether on
a show of hands or on a poll, by his committee, receiver, guardian or
other person appointed by that court, and any such committee,
receiver, guardian or other person may vote by proxy on a show of
hands or on a poll. Evidence to the satisfaction of the Directors of
the authority of the person claiming to exercise the right to vote
shall be deposited at the Office or at such other place as is
specified in accordance with these Articles for the deposit of
instruments of proxy, not less than forty-eight hours before the time
appointed for holding the meeting or
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adjourned meeting at which the right to vote is to be exercised and,
in default, the right to vote shall not be exercisable.
58. DEFAULT IN PAYMENT OF CALLS
No member shall be entitled to vote at any general meeting or any
separate meeting of the holders of any class of shares in the Company
either in person or by proxy, in respect of any share held by him
unless all moneys presently payable by him in respect of that share
have been paid.
59. TIME FOR OBJECTION TO VOTING
No objection shall be raised to the qualification of any voter except
at the meeting or adjourned meeting at which the vote objected to is
tendered and every vote not disallowed at such meeting shall be
valid. Any such objection made in due time shall be referred to the
chairman of the meeting whose decision shall be final and conclusive.
60. PROXY VOTING
The instrument appointing a proxy shall be in writing in any usual
form or in any other form which the Directors may approve and shall
be executed by or on behalf of the appointor. The signature on such
instrument need not be witnessed. A proxy need not be a member of the
Company. A member may appoint more than one proxy to attend on the
same occasion.
61. DEPOSIT OF PROXY INSTRUMENTS
The instrument appointing a proxy and any authority under which it is
executed or a copy, certified notarially or in some other way
approved by the Directors, shall be deposited at such place or one of
such places (if any) within the State as may be specified for that
purpose in or by way of note to the notice convening the meeting (or,
if no place is so specified, at the Office) not less than forty-eight
hours before the time appointed for the holding of the meeting or
adjourned meeting or (in the case of a poll taken otherwise than at
or on the same day as the meeting or adjourned meeting) for the
taking of the poll at which it is to be used and, in default, shall
not be treated as valid. Provided that:
(i) in the case of a meeting which is adjourned to, or a poll
which is to be taken on a date which is less than seven days
after the date of the meeting which was adjourned or at
which the poll was demanded, it shall be sufficient if the
instrument of proxy and any such authority and clarification
thereof as
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aforesaid, is lodged with the Secretary at the
commencement of the adjourned meeting or the taking of the
poll; and
(ii) an instrument of proxy relating to more than one meeting
(including any adjournment thereof) having once been so
delivered for the purposes of any meeting shall not require
again to be delivered for the purposes of any subsequent
meeting to which it relates.
62. EFFECT OF PROXY INSTRUMENTS
Deposit of an instrument of proxy in respect of a meeting shall not
preclude a member from attending and voting at the meeting or at any
adjournment thereof. The instrument appointing a proxy shall, unless
the contrary is stated therein, be valid as well as for any
adjournment of the meeting as for the meeting to which it relates.
63. EFFECT OF REVOCATION OF PROXY
A vote given or poll demanded by proxy or by the duly authorised
representative of a body corporate shall be valid notwithstanding the
death or insanity of the principal or resignation of the authority of
the person voting or demanding a poll unless notice of the
determination was received by the Company at the Office before the
commencement of the meeting or adjourned meeting at which the proxy
is used or at such other place at which the instrument of proxy was
duly deposited, before the commencement of the meeting or adjourned
meeting at which the vote is given or the poll demanded or (in the
case of a poll taken otherwise than on the same day as the meeting or
adjourned meeting) the time appointed for taking the poll.
PART XI - DIRECTORS
64. NUMBER OF DIRECTORS
The number of Directors (other than alternate Directors) shall not be
more than seven unless otherwise determined by ordinary resolution.
65. ORDINARY REMUNERATION OF DIRECTORS
The ordinary remuneration of the Directors shall from time to time be
determined by an ordinary resolution of the Company and shall (unless
such resolution shall otherwise provide) be divisible among the
Directors as they may agree, or, failing agreement, equally, except
that any Director who shall hold office for part only of the period
in respect of which such remuneration is payable shall be entitled
only to rank in such division for a proportion of the remuneration
related to the period during which he has held office.
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66. SPECIAL REMUNERATION OF DIRECTORS
Any Director who holds any executive office (including for this
purpose the office of chairman or deputy chairman) or who serves on
any committee, or who otherwise performs services which in the
opinion of the Directors are outside the scope of the ordinary duties
of a Director, may be paid such extra remuneration by way of salary,
commission or otherwise as the Directors may determine.
67. EXPENSES OF DIRECTORS
The Directors may be paid all travelling, hotel and other expenses
properly incurred by them in connection with their attendance at
meetings of Directors or committess of Directors or general meetings
or separate meetings of the holders of any class of shares or of
debentures of the Company or otherwise in connection with the
discharge of their duties.
68. SHAREHOLDING QUALIFICATION
The shareholding qualification for Directors may be fixed by the
Company in general meeting and unless and until so fixed, no
qualification shall be required.
69. ALTERNATE DIRECTORS
(a) Any Director other than an alternate may by writing under his hand
appoint any person (including another Director) to be his alternate
provided always that no such appointment of a person other than a
Director as an alternate shall be operative unless and until such
appointment shall have been approved by resolution of the Directors.
(b) An alternate Director shall be entitled to receive notices of all
meetings of the Directors and of all meetings of committees of the
Directors of which his appointor is a member, to attend and vote at
any such meeting at which the Director appointing him is not
personally present and in the absence of his appointor to exercise
all the powers, rights, duties and authorities of his appointor as a
Director (other than the right to appoint an alternate hereunder).
(c) Save as otherwise provided in these Articles, an alternate Director
shall be deemed for all purposes to be a Director and shall alone be
responsible for his own acts and defaults and he shall not be deemed
to be the agent of the Director appointing him. The remuneration of
such alternate Director shall be payable out of the remuneration paid
to the Director appointing him and shall consist of such portion of
the last
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mentioned remuneration as shall be agreed between the alternate and
the Director appointing him.
(d) A Director may at any time revoke the appointment of any alternate
appointed by him. If a Director shall die or cease to hold the office
of Director the appointment of his alternate shall thereupon cease
and determine but if a Director retires by rotation or otherwise but
is re-appointed or deemed to have been re-appointed at the meeting at
which he retires, any appointment of any alternate Director made by
him which was in force immediately prior to his retirement shall
continue after his re-appointment.
(e) Any appointment or revocation by a Director under this Article shall
be effected by notice in writing given under his hand to the
Secretary or deposited at the Office or in any other manner approved
by the Directors.
PART XII - POWERS OF DIRECTORS
70. DIRECTOR'S POWERS
Subject to the provisions of the Acts, the Memorandum of Association
of the Company and these Articles and to any directions given by
ordinary resolution, the business of the Company shall be managed by
the Directors who may exercise all the powers of the Company. No
alteration of the Memorandum of Association of the Company or of
these Articles and no such direction shall invalidate any prior act
of the Directors which would have been valid if that alteration had
not been made or that direction had not been given. The powers given
by this Article shall not be limited by any special power given to
the Directors by these Articles and a meeting of Directors at which a
quorum is present may exercise all powers exercisable by the
Directors.
71. POWER TO DELEGATE
The Directors may delegate any of their powers to any Managing
Director or any Director holding any other executive office and to
any committee consisting of one or more Directors. Any such
delegation may be made subject to any conditions the Directors may
impose, and either collaterally with or to the exclusion of their own
powers and may be revoked. Subject to any such conditions, the
proceedings of a committee with two or more members shall be governed
by the provisions of these Articles regulating the proceedings of
Directors so far as they are capable of applying.
72. APPOINTMENT OF ATTORNEYS
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The Directors may from time to time and at any time by power of
attorney appoint any company, firm or person or body of persons,
whether nominated directly or indirectly by the Directors, to be the
attorney or attorneys of the Company for such purposes and with such
powers, authorities and discretions (not exceeding those vested in or
exercisable by the Directors under these Articles) and for such
period and subject to such conditions as they may think fit, and any
such power of attorney may contain such provisions for the protection
of persons dealing with any such attorney as the Directors may think
fit, and may also authorise any such attorney to delegate all or any
of the powers, authorities and discretions vested in him.
73. LOCAL MANAGEMENT
The Directors may establish any committees, local boards or agencies
for managing any of the affairs of the Company, either in the State
or elsewhere, and may appoint any persons to be members of such
committees, local boards or agencies and may fix their remuneration
and may delegate to any committee, local board or agent any of the
powers authorities and discretions vested in the Board with power to
sub-delegate and any such appointment or delegation may be made upon
such terms and subject to such conditions as the Board may think fit,
and the Board may remove any person so appointed, and may annul or
vary any such delegation, but no person dealing in good faith without
notice of any such annulment or variation shall be affected thereby.
74. BORROWING POWERS.
(a) Subject as hereinafter provided, the Directors may exercise all the
powers of the Company to borrow money and to mortgage or charge its
undertaking, property and uncalled capital and to issue debentures
and other securities, whether outright or as collateral security for
any debt, liability or obligation of the Company or for any third
party.
(b) The Directors may restrict the borrowings of the Company and
exercise all voting and other rights or powers of control exercisable
by the Company in relation to its subsidiary companies so as to
secure that the aggregate amount for the time being remaining
undischarged of all borrowed moneys (as hereinafter defined) shall
not at any time without the previous sanction of an ordinary
resolution of the Company exceed a sum equal to the amount paid up on
the issued share capital of the Company plus the aggregate amount
standing to the credit of the Company's consolidated capital and
revenue reserves (including any share premium account or capital
redemption reserve fund) ("the Share Capital and Consolidated
Reserves").
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(c) The certificate of the Auditors as to the amount of the Share Capital
and Consolidated Reserves at any time shall be conclusive and binding
upon all concerned.
(d) No person dealing with the Company or any of its subsidiaries shall
by reason of the foregoing provision be concerned to see or enquire
whether this limit is observed and no debt incurred or security had
at the time when the debt was incurred or the security given in
excess of such limit shall be invalid or ineffectual unless the
lender or the recipient of the security are given express notice that
the limit hereby imposed had been or would thereby be exceeded.
(e) For the purposes of this Article the expression "Borrowed Moneys"
means the principal amount of moneys borrowed by the Company and each
subsidiary thereof as extracted from the latest published audited
consolidated balance sheet of the Company and its subsidiaries
provided that:
(i) moneys borrowed by the Company from and for the time being
owing to a subsidiary or by any subsidiary from and for the
time being owing to the Company or another subsidiary shall
not be included in the calculation of Borrowed Moneys;
(ii) moneys borrowed for the purpose of and within four months
applied in repaying other borrowed moneys shall not
themselves be taken into account until such application;
(iii) there shall be included in the meaning of such expression
such proportion of the money borrowed by any subsidiary as
the equity share capital of such subsidiary which is
benefically owned directly or indirectly by the Company
bears to the total equity share capital of such subsidiary
and the remainder of the money borrowed by such subsidiary
shall be excluded;
(iv) the principal amount (including any premium payable on final
redemption) of any debentures issued for a consideration
other than cash by the Company and/or any such subsidiary
shall be included in the meaning of such expression; and
(v) from the aggregate of the amounts which would apart from
this provision be regarded as Borrowed Moneys there shall be
deducted an amount equal to the principal amount of cash
balances held in hand or with banks by the Company and all
such subsidiaries.
(f) The Directors may raise or secure the repayment of such sums in such
manner and upon such terms and conditions in all respects as they
think fit and, in particular, by the issue of bonds, perpetual or
redeemable debentures or debenture stock, loan
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stock or any mortgage, charge or other security on the undertaking or
the whole or any part of the property of the Company (both present
and future) including its uncalled capital.
(g) Debentures, debenture stock and other securities may be made
assignable free from any equities between the Company and the person
to whom the same may be issued. Subject to the provisions of the Acts
any debentures, debenture stock, bonds or other securities may be
issued at a discount premium or otherwise, and with any special
privileges as to redemption, surrender, drawings, allotment of
shares, attending and voting at general meetings of the Company,
appointment of Directors or otherwise.
PART XIII - APPOINTMENT, RETIREMENT AND DISQUALIFICATION OF
DIRECTORS
75. ELIGIBILITY FOR APPOINTMENT
No person shall be appointed as a Director at any general meeting
unless, not less than seven nor more than thirty clear days before
the date appointed for the meeting, a notice executed by a member
qualified to vote at the meeting has been given to the Company of the
intention to propose that person for appointment stating, with
respect to such person to be proposed, the particulars which would,
if he were so appointed, be required to be included in the Company's
Register of Directors together with a notice executed by that person
of his willingness to be appointed.
76. APPOINTMENT OF ADDITIONAL DIRECTORS
(a) Subject as aforesaid the Company may by ordinary resolution appoint a
person to be a Director either to fill a vacancy or as an additional
Director.
(b) The Directors may appoint a person who is willing to act to be a
Director, either to fill a vacancy or as an additional Director
provided that the appointment does not cause the number of Directors
to exceed any number fixed by or in accordance with these Articles as
the maximum number of Directors.
77. RETIREMENT BY ROTATION
(a) Subject to the provisions of these Articles, one-third of the
Directors for the time being or, if their number is not three or a
multiple of three, then the number nearest
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to, but not exceeding, one-third shall retire from office at each
annual general meeting.
(b) Subject to the provisions of the Acts and of these Articles, the
Directors to retire at each annual general meeting shall be the
Directors who have been longest in office since their last
appointment. As between Directors of equal seniority, the Directors
to retire shall, in the absence of agreement, be selected from among
them by lot. Subject as aforesaid, a retiring Director shall be
eligible for reappointment and shall act as a Director throughout the
meeting at which he retires.
(c) A retiring Director shall be eligible for re-election.
(d) The Company may by ordinary resolution at the meeting at which any
Director retires in the manner aforesaid fill the vacated office by
appointing a person thereto and, in default, the retiring Director,
if willing to act, shall be deemed to have been re-appointed unless
at such meeting it is expressly resolved not to fill such vacated
office or a resolution for the re-appointment of such Director shall
have been put to the meeting and lost.
(e) At a general meeting a motion for the appointment of two or more
persons as Directors of the Company by a single resolution shall not
be put unless a resolution that it shall be so put has been first
agreed to by the meeting without any vote being given against it.
78. DISQUALIFICATION OF DIRECTORS
The office of a Director shall be vacated if:
(i) he ceases to be a Director by virtue of any provision of
the Acts, or he becomes prohibited or restricted by law
from being a Director;
(ii) he is adjudged a bankrupt in the State or in Northern
Ireland or Great Britain or in the United States of America
or makes any arrangement or composition with his creditors
generally and in the case of a Director domiciled in the
United States of America matters pertaining to the
bankruptcy or insolvency of that director or the rights of
creditors against him or in and to his estate shall be
determined pursuant to the laws of the State of his
domicile.;
(iii) he becomes prohibited or restricted from being a Director by
reason of any order made under Part VII of the Companies Act
1990;
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(iv) in the opinion of a majority of his co-Directors he becomes
incapable by reason of mental disorder of discharging his
duties as a Director;
(v) he resigns his office by notice to the Company;
(vi) he is convicted of an indictable offence, unless the
Directors otherwise determine; or
(vii) he shall for more than six consecutive months have been
absent without permission of the Directors from meetings of
the Directors held during that period, and the Directors
pass a resolution that he has by reason of such absence
vacated office.
PART XIV - DIRECTORS' OFFICERS AND INTERESTS
79. EXECUTIVE OFFICERS
(a) The Directors may appoint one or more of their body to any executive
office under the Company (including, where considered appropriate,
the office of chairman) on such terms and for such period as they may
determine and, without prejudice to the terms of any contract entered
into in any particular case, may at any time revoke any such
appointment.
(b) The appointment of any Director to the office of chairman shall
automatically determine if he ceases to be a Director but without
prejudice to any claim for damages for breach of any contract of
service between him and the Company.
(c) The appointment of any Director to any other executive office shall
not automatically determine if he ceases from any cause to be a
Director unless the contract or resolution under which he holds
office shall expressly state otherwise, in which event such
determination shall be without prejudice to any claim for damages for
breach of any contract of service between him and the Company.
80. DIRECTORS' INTERESTS
a) Subject to the provisions of the Acts, and provided that he had
disclosed to the Directors the nature and extent of any material
interest of his, a Director notwithstanding his office:
(i) may be a party to, or otherwise interested in, any
transaction or arrangement with the Company or any
subsidiary or associated company thereof or in which the
Company or any subsidiary or associated company
thereof is otherwise interested;
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(ii) may be a Director or other officer of, or employed by, or a
party to any transaction or arrangement with, or otherwise
interested in, any body corporate promoted by the Company or
in which the Company or any subsidiary or associated company
thereof is otherwise interested;
(iii) shall not, by reason of his office, be accountable to the
Company for any benefit which he derives from any such
office or employment or from any such transaction or
arrangement or from any interest in any such body corporate
and no such transaction or arrangement shall be liable to be
avoided on the ground of any such interest or benefit;
(b) For the purposes of this Article:
(i) a general notice given to the Directors that a Director is
to be regarded as having an interest of the nature and
extent specified in the notice in any transaction or
arrangement in which a specified person or class of persons
is interested shall be deemed to be a disclosure that the
Director has an interest in any such transaction of the
nature and extent so specified; and
(ii) an interest of which a Director has no knowledge and of
which it is unreasonable to expect him to have knowledge
shall not be treated as an interest of his.
81. RESTRICTION ON DIRECTOR'S VOTING
(a) Save as otherwise provided by these Articles a Director shall not
vote at a meeting of the Directors or a committee of the Directors on
any resolution concerning a matter in which he has, directly or
indirectly, an interest or duty which is material and which conflicts
or may conflict with the interests of the Company. A Director shall
not be counted in the quorum present at a meeting in relation to a
resolution on which he is not entitled to vote.
(b) A Director shall (in the absence of some other material interest than
is indicated below) be entitled to vote (and be counted in the
quorum) in respect of any resolutions concerning any of the following
matters, namely:
(i) the giving of any security, guarantee or indemnity to him in
respect of money lent by him to the Company or any of its
subsidiary or associated companies or obligations incurred
by him at the request of or for the benefit of the Company
or any of its subsidiary or associated companies;
(ii) the giving of any security, guarantee or indemnity to a
third party in respect of a debt or obligation of the
Company or any of its subsidiary or associated companies for
which he himself has assumed responsibility in
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whole or in part and whether alone or jointly with others
under a guarantee or indemnity or by the giving of security;
(iii) any subscription by him or agreement by him to subscribe for
shares or debentures or other securities of the Company or
any of its subsidiary or associated companies or any
proposal concerning any offer of shares or debentures or
other securities of or by the Company or any of its
subsidiary or associated companies for subscription,
purchase or exchange in which offer he is or is to be
interested as a participant in the underwriting or
sub-underwriting thereof;
(iv) any proposal concerning any other company in which he is
interested, directly or indirectly and whether as an officer
or shareholder or otherwise howsoever, provided that he is
not the holder of or beneficially interested in 1% or more
of the issued shares of any class of such company or of the
voting rights available to members of the relevant company
(any such interest being deemed for the purposes of this
Article to be a material interest in all circumstances); or
(v) any proposal concerning the adoption, modification or
operation of a superannuation fund or retirement benefits
scheme under which he may benefit and which has been
approved by or is subject to and conditional upon approval
for taxation purposes by the appropriate Revenue
authorities.
(c) Where proposals are under consideration concerning the appointment
(including fixing or varying the terms of appointment) of two or more
Directors to offices or employments with the Company or any company
in which the Company is interested, such proposals may be divided and
considered in relation to each Director separately and in such case
each of the Directors concerned (if not debarred from voting under
sub-paragraph (b)(iv) of this Article) shall be entitled to vote (and
be counted in the quorum) in respect of each resolution except that
concerning his own appointment.
(d) If a question arises at a meeting of Directors or of a committee of
the Directors as to the materiality of a Director's interest or as to
the right of any Director to vote and such question is not resolved
by his voluntarily agreeing to abstain from voting, such question
may, before the conclusion of the meeting, be referred to the meeting
of Directors and their ruling in relation to any Director other than
himself shall be final and conclusive, in the event of an equality of
votes the chairman of the Meeting shall have a second or casting
vote.
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(e) The Company may by ordinary resolution suspend or relax the
provisions of this Article to any extent or ratify any transaction
not duly authorised by reason of a contravention of this Article.
(f) For the purposes of this Article, an interest of a person who is the
spouse or a minor child of a Director shall be treated as an interest
of the Director and in relation to an alternate Director, an interest
of his appointor shall be treated as an interest of the alternate
Director.
82. ENTITLED TO GRANT PENSIONS
The Directors may provide benefits, whether by way of pensions,
gratuities or otherwise for any Director, former Director or other
officer or former officer of the Company or to any person who holds
or has held any employment with the Company or with any body
corporate which is or has been a subsidiary or associated company of
the Company or a predecessor in business of the Company or of any
such subsidiary or associated company and to any member of his family
or any person who is or was dependent on him and may set up,
establish, support, alter, maintain and continue any scheme for
providing such benefits and for such purposes any Director may
accordingly be, become or remain a member of, or rejoin any scheme
and receive or retain for his own benefit all benefits to which he
may be or become entitled thereunder. The Directors may pay out of
the funds of the Company any premiums, contributions or sums payable
by the Company under the provisions of any such scheme in respect of
any of the persons or class of persons above referred to who are or
may be or become members thereof.
PART XV - PROCEEDINGS OF DIRECTORS
83. REGULATION AND CONVENING OF DIRECTORS' MEETINGS
Subject to the provisions of these Articles the Directors may
regulate their proceedings as they think fit. A Director may, and the
Secretary at the request of a Director shall, call a meeting of the
Directors. Any Director may waive notice of any meeting and any such
waiver may be retrospective. If the Directors so resolve, it shall
not be necessary to give notice of a meeting of Directors to any
Director or alternate Director who, being a resident in the State, is
for the time being absent from the State.
84. VOTING AT DIRECTORS' MEETINGS
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Questions arising at any meeting of Directors shall be decided by a
majority of votes. Where there is an equality of votes, the chairman
of the meeting shall have a second or casting vote. A Director who is
also an alternate Director for one or more Directors shall be
entitled in the absence of any such appointor from a meeting to a
separate vote at such meeting on behalf of each such appointor in
addition to his own vote.
85. QUORUM FOR DIRECTORS' MEETINGS
(a) The quorum for the transaction of the business of the Directors may
be fixed by the Directors and unless so fixed at any other number
shall be two. A person who holds office only as an alternate Director
shall, if his appointor is not present, be counted in the quorum but
notwithstanding that such person may act as alternate Director for
more than one Director he shall not count as more than one for the
purposes of determining whether a quorum is present.
(b) The continuing Directors or a sole Director may act notwithstanding
any vacancies in their number but, if the number of Directors is less
than the number fixed as the quorum, they may act only for the
purpose of filling vacancies or of calling a general meeting.
86. TELECOMMUNICATION MEETINGS
Any Director or alternate Director may participate in a meeting of
the Directors or any committee of the Directors by means of
conference telephone or other telecommunications equipment by means
of which all persons participating in the meeting can hear each other
and such participation in a meeting shall constitute presence in
person at the meeting.
87. CHAIRMAN OF BOARD OF DIRECTORS
Subject to any appointment to the office of chairman made pursuant to
these Articles the Directors may elect a chairman of their meetings
and determine the period for which he is to hold office, but if no
such chairman is elected, or, if at any meeting the chairman is
unwilling to act or is not present within ten minutes after the time
appointed for holding the same, the Directors present may choose one
of their number to be chairman of the meeting.
88. VALIDITY OF ACTS OF DIRECTORS
All acts done by any meeting of the Directors or of a committee of
the Directors or by any person acting as a Director shall,
notwithstanding that it be afterwards
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discovered that there was some defect in the appointment of any such
Director or person acting as aforesaid, or that they or any of them
were disqualified from holding office or had vacated office, be as
valid as if every such person had been duly appointed and was
qualified and had continued to be a Director and had been entitled to
vote.
89. DIRECTORS' RESOLUTIONS IN WRITING
A resolution in writing signed by all the Directors entitled to
receive notice of a meeting of Directors or of a committee of
Directors shall be as valid as if it had been passed at a meeting of
Directors or (as the case may be) a committee of Directors duly
convened and held and may consist of several documents in the like
form each signed by one or more Directors but a resolution signed by
an alternate Director need not also be signed by his appointor and,
if it is signed by a Director who has appointed an alternate
Director, it need not be signed by an alternate Director in that
capacity.
PART XVI - THE SECRETARY
90. APPOINTMENT OF SECRETARY
The Secretary shall be appointed by the Directors for such term, at
such remuneration and upon such conditions as they may think fit and
any Secretary so appointed may be removed by them.
91. ASSISTANT SECRETARY
The Directors may appoint an assistant or deputy secretary and any
provision in these Articles requiring or authorising a thing to be
done by or to the Secretary shall be satisfied by it being done by or
to the assistant or deputy secretary. A provision of the Acts or
these regulations requiring or authorising a thing to be done by or
to a Director and the Secretary shall not be satisfied by its being
done by or to the same person acting both as Director and as, or in
the place of, the Secretary.
PART XVII - THE SEAL
92. USE OF SEAL
The Directors shall ensure that the common seal of the Company kept
pursuant to the Acts shall only be used by the authority of the
Directors or of a committee authorised by the Directors.
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93. SEAL FOR USE ABROAD
The Company may exercise the powers conferred by the Acts with regard
to having an official seal for use abroad and such powers shall be
vested in the Directors.
94. SIGNATURE OF SEALED INSTRUMENTS
Every instrument to which either such seal shall be affixed shall be
signed by:
(i) A Director or some other person appointed by the Directors
for the purpose: and
(ii) the Secretary or a Director or some other person appointed by
the Directors for the purpose (being in
all cases a person other than the person who signed the
instrument under sub-paragraph (i) of this Article), save
that as regards any certificates for shares or debentures or
other securities of the Company the Directors may by
resolution determine that such signatures or either of them
shall be dispensed with, printed thereon or affixed thereto
by any method or system of mechanical signature.
PART XVIII - DIVIDENDS AND RESERVES
95. DECLARATION OF DIVIDENDS
Subject to the provisions of the Acts, the Company may by ordinary
resolution declare dividends in accordance with the respective rights
of the members, but no dividend shall exceed the amount recommended by
the Directors. Any dividend recommended by the Directors and declared
by the Company may be in Euros or, in whole or in part, in such other
currency or currencies as the Directors may from time to time decide.
96. INTERIM AND FIXED DIVIDENDS
Subject always to the provisions of the Acts, the Directors may pay
interim dividends if it appears to them that they are justified by the
profits of the Company available for distribution. Subject always to
the provisions of the Acts, if the share capital is divided into
different classes, the Directors may pay interim dividends on shares
which confer deferred or non-preferred rights with regard to dividend
as well as on shares which confer preferential rights with regard to
dividend, but no interim dividend shall be paid on shares carrying
deferred or non-preferred rights if, at the time of payment, any
preferential dividend is in arrears. Subject as aforesaid the Directors
may also pay at intervals settled by them any dividend payable at a
fixed
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rate if it appears to them that the profits available for
distribution justify the payment. Interim dividends may be paid in
Euros or, in whole or in part, in such other currency or currencies
as the Directors may from time to time decide. Provided the Directors
act in good faith they shall not incur any liability to the holders
of shares conferring preferred rights for any loss they may suffer by
the lawful payment of an interim dividend on any shares having
deferred or non-preferred rights.
97. PAYMENT OF DIVIDENDS
Except as otherwise provided by the rights attaching to shares, all
dividends shall be declared and paid according to the amounts paid up
on the shares on which the dividend is paid. Subject as aforesaid, all
dividends shall be apportioned and paid proportionately to the amounts
paid or credited as paid on the shares during any portion or portions
of the period in respect of which the dividend is paid but if any share
is issued on terms providing that it shall rank for dividend as from a
particular date, such share shall rank for dividend accordingly. All
dividends shall be paid in the currency or currencies in which they
have been declared, save as the Directors may otherwise decide from
time to time.
98. DEDUCTIONS FROM DIVIDENDS
The Directors may deduct from any dividend or other moneys payable to
any member in respect of a share any moneys presently payable by him to
the Company in respect of that share on account of calls or otherwise
in relation to the shares of the Company.
99. DIVIDENDS IN SPECIE
A general meeting declaring a dividend may, upon the recommendation of
the Directors, direct that it shall be satisifed wholly or partly by
the distribution of assets (and, in particular, of paid up shares,
debentures or debenture stock of any other company or in any one or
more of such ways) and the Directors shall give effect to such
resolution. Where any difficulty arises in regard to the distribution,
the Directors may settle the same as they think expedient, and in
particular may issue fractional certificates and fix the value for
distribution of such specific assets or any part thereof and may
determine that cash payments shall be made to any members upon the
footing of the value so fixed in order to adjust the rights of all the
parties and may vest any such specific assets in trustees.
100. PAYMENT OF DIVIDENDS BY POST
Any dividend or other moneys payable in respect of any share may be
paid by cheque or warrant sent by post to the registered address of
the holder or, where
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there are joint holders, to the registered address of that one of the
joint holders who is first named on the Register or to such person
and to such address as the holder or joint holders may in writing
direct. Every such cheque or warrant shall be made payable to the
order of the person to whom it is sent and payment of the cheque or
warrant shall be a good discharge to the Company. Any joint holder or
other person jointly entitled to a share as aforesaid may give
receipts for any dividend or other moneys payable in respect of the
share.
101. DIVIDENDS NOT TO BEAR INTEREST
No dividend or other moneys payable in respect of a share shall bear
interest against the Company unless otherwise provided by the rights
attached to the shares.
102. PAYMENT TO HOLDERS ON A PARTICULAR DATE
Any resolution declaring a dividend on shares of any class, whether a
resolution of the Company in general meeting or a resolution of the
Directors, may specify that the same may be payable to the persons
registered as the holders of such shares at the close of business on
a particular date, notwithstanding that it may be a date prior to
that on which the resolution is passed, and thereupon the dividend
shall be payable to them in accordance with their respective holdings
so registered, but without prejudice to the rights inter se in
respect of such dividend of transferors and transferees of any such
shares. The provisions of this Article shall mutatis mutandis apply
to captialisations to be effected pursuant to these Articles.
103. UNCLAIMED DIVIDENDS
Any dividend which has remained unclaimed for twelve years from the
date of its declaration shall, if the Directors so resolve, be
forfeited and cease to remain owing by the Company. The payment by
the Directors of any unclaimed dividend or other moneys payable in
respect of a share into a separate account shall not constitute the
Company a trustee in respect thereof.
PART XIX - CAPITALISATION OF PROFITS OR RESERVES
104. CAPITALISATION OF DISTRIBUTABLE PROFITS AND RESERVES.
The Company in general meeting may, upon the recommendation of the
Directors, resolve that any sum for the time being standing to the
credit of any of the Company's reserves (including any capital
redemption reserve fund or share premium account) or to the credit of
the profit and loss account be capitalised and
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applied on behalf of the members who would have been entitled to
receive that sum if it had been distributed by way of dividend and in
the same proportions either in or towards paying up amounts for the
time being unpaid on any shares held by them respectively, or in
paying up in full unissued shares or debentures of the Company of a
nominal amount equal to the sum capitalised (such shares or
debentures to be allotted and distributed credited as fully paid up
to and amongst such holders in the proportions aforesaid) or partly
in one way and partly in another, so however, that the only purpose
for which sums standing to the credit of the capital redemption
reserve fund or the share premium account shall be applied shall be
those permitted by the Acts.
105. CAPITALISATION OF NON-DISTRIBUTABLE PROFITS AND RESERVES
The Company in general meeting may, on the recommendation of the
Directors resolve that it is desirable to capitalise any part of the
amount for the time being standing to the credit of any of the
Company's reserve accounts or to the credit of the profit and loss
account which is not available for distribution by applying such sum
in paying up in full unissued shares to be allotted as fully paid
bonus shares to those members of the Company who would have been
entitled to that sum if it were distributable and had been
distributed by way of dividend (and in the same proportions) and the
Directors shall give effect to such resolution.
106. IMPLEMENTATION OF CAPITALISATION ISSUES
Whenever such a resolution is passed in pursuance of either of the
two immediately preceding Articles the Directors shall make all
appropriations and applications of the undivided profits resolved to
be capitalised thereby and all allotments and issues of fully paid
shares or debentures, if any, and generally shall do all acts and
things required to give effect thereto with full power to the
Directors to make such provisions as they shall think fit for the
case of shares or debentures becoming distributable in fractions
(and, in particular, without prejudice to the generality of the
foregoing, either to disregard such fractions or to sell the shares
or debentures represented by such fractions and distribute the net
proceeds of such sale to and for the benefit of the Company or to and
for the benefit of the members otherwise entitled to such fractions
in due proportions) and also to authorise any person to enter on
behalf of all the members concerned into an agreement with the
Company providing for the allotment to them respectively credited as
fully paid up, of any further shares or debentures to which they may
become entitled on such capitalisation or, as the case may require,
for the payment up by the application thereto of their respective
proportions of the profits resolved
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to be capitalised of the amounts remaining unpaid on their existing
shares and any agreement made under such authority shall be binding
on all such members.
PART XX - NOTICES
107. NOTICE IN WRITING
Any notice to be given, served or delivered pursuant to these
Articles shall be in writing.
108. SERVICE OF NOTICES.
(a) A notice or document (including a share certificate) to be given,
served or delivered in pursuance of these Articles may be given to,
served on or delivered by the Company to any member:
(i) by handing the same to him or his authorised agent;
(ii) by leaving the same at his registered address;
(iii) by sending the same by facsimile transmission; or
(iv) by sending the same by post in a pre-paid envelope addressed
to him at his registered address.
(b) Where a notice or document is given, served or delivered pursuant to
sub-paragraphs (a)(i), (ii) or (iii) of this Article, the giving,
service or delivery thereof shall be deemed to have been effected at
the time the same was handed to the member or his authorised agent or
left at his registered address or upon receipt by facsimile (as the
case may be).
(c) Where a notice or document is given, served or delivered pursuant to
sub-paragraph (a)(iv) of this Article the giving, service or delivery
thereof shall be deemed to have been effected at the expiration of
twenty-four hours after the envelope containing it was posted. In
proving such service or delivery it shall be sufficient to prove that
such envelope was properly addressed, stamped and posted.
(d) Without prejudice to the provisions of sub-paragraphs (a)(i),
(a)(ii) and (a)(iii) of this Article, if at any time by reason of the
suspension or curtailment of postal services within the State, the
Company is unable effectively to convene a general meeting by notices
sent through the post, a general meeting may be convened by a notice
advertised on the same date in at least one national daily newspaper
in the State (and one national daily newspaper in the United Kingdom
and the Wall Street Journal in the United States of America) and such
notice shall be deemed to have
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been duly served on all members entitled thereto at noon on the day
on which the said advertisement shall appear. In any such case the
Company shall send confirmatory copies of the notice through the post
to those members whose registered addresses are outside the State (if
or to the extent that in the opinion of the Directors it is practical
so to do) or are in areas of the State unaffected by such suspension
or curtailment of postal services and if at least ninety-six hours
prior to the time appointed for the holding of the meeting the
posting of notices to members in the State or any part thereof which
was previously effected, has again in the opinion of the Directors,
become practical the Directors shall forthwith send confirmatory
copies of the notice by post to such members. The accidental omission
to give any such confirmatory copy of a notice of a meeting to, or
the non-receipt of any such confirmatory copy by, any person entitled
to receive the same shall not invalidate the proceedings at the
meeting.
(e) Notwithstanding anything contained in this Article the Company shall
not be obliged to take account of or make any investigations as to
the existence of any suspension or curtailment of postal services
within or in relation to all or any part of any jurisdiction or other
area other than the State.
109. SERVICE ON JOINT HOLDERS
A notice may be given by the Company to the joint holders of a share
by giving the notice to the joint holder whose name stands first in
the Register in respect of the share and notice so given shall be
sufficient notice to all the joint holders.
110. SERVICE ON TRANSFER OR TRANSMISSION OF SHARES
(a) Every person who becomes entitled to a share shall be bound by any
notice in respect of that share which, before his name is entered in
the Register in respect of the share, has been duly given to a person
from whom he derives his title.
(b) Without prejudice to the provisions of these Articles allowing a
meeting to be convened by newspaper advertisement a notice may be
given by the Company to the persons entitled to a share in
consequence of the death or bankruptcy of a member by sending or
delivering it, in any manner authorised by these Articles for the
giving of notice to a member, addressed to them at the address, if
any, supplied by them for that purpose. Until such an address has
been supplied, a notice may be given in any manner in which it might
have been given if the death or bankruptcy had not occurred.
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111. SIGNATURE TO NOTICES
The signature to any notice to be given by the Company may be written
or printed.
112. DEEMED RECEIPT OF NOTICES
A member present, either in person or by proxy, at any meeting of the
Company or the holders of any class of shares in the Company shall be
deemed to have received notice of the meeting and, where requisite,
of the purposes for which it was called.
PART XXI - WINDING UP
113. DISTRIBUTION ON WINDING UP
If the Company shall be wound up and the assets available for
distribution among the members shall be insufficient to repay the
whole of the paid up or credited as paid up share capital, such
assets shall be distributed so that, as nearly as may be, the losses
shall be borne by the members in proportion to the capital paid up or
credited as paid up at the commencement of the winding up on the
shares held by them respectively. If on a winding up the assets
available for distribution among the members shall be more than
sufficient to repay the whole of the share capital paid up or
credited as paid up at the commencement of the winding up, the excess
shall be distributed among the members in proportion to the capital
at the commencement of the winding up paid up or credited as paid up
on the said shares held by them respectively. Provided that this
Article shall not affect the rights of the holders of shares issued
upon special terms and conditions.
114. DISTRIBUTION IN SPECIE
If the Company is wound up, the Liquidator may with the sanction of a
special resolution of the Company and any other sanction required by
the Acts, divide among the members in specie or kind the whole or any
part of the assets of the Company (whether they shall consist of
property of the same kind or not) and may, for such purpose, value
any assets and determine how the division shall be carried out as
between the members or different classes of members. The Liquidator
may, with the like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the
contributories as he, with the like sanctions determines, but so that
no member shall be compelled to accept any assets upon which there is
a liability.
PART XXII - MISCELLANEOUS
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115. INSPECTION OF BOOKS ETC. BY MEMBERS
The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them
shall be open to the inspection of members, not being Directors, and
non members (not being a Director) shall not have any right of
inspecting any account or book or document of the Company except as
conferred by the Acts or authorised by the Directors or by the
Company in general meeting and no member, not being a Director, shall
be entitled to require or receive any information concerning the
business, trading or customers of the Company or any trade secret or
secret process of or used by the Company.
116. DESTRUCTION OF RECORDS
The Company shall be entitled to destroy all instruments of transfer
which have been registered at any time after the expiration of six
years from the date of registration thereof, all notifications of
change of address at any time after the expiration of two years from
the date of recording thereof and all share certificates and dividend
mandates which have been cancelled or ceased to have effect at any
time after the expiration of one year from the date of such
cancellation or cessation. It shall be conclusively presumed in
favour of the Company that every entry in the Register purporting to
have been made on the basis of an instrument of transfer or other
document so destroyed was duly and properly made and every instrument
duly and properly registered and every share certificate so destroyed
was a valid and effective document duly and properly cancelled and
every other document hereinbefore mentioned so destroyed was a valid
and effective document in accordance with the recorded particulars
thereof in the books or records of the Company. Provided always that:
(a) the provision aforesaid shall apply only to the destruction
of a document in good faith and without notice of any claim
(regardless of the parties thereto) to which the document
might be relevant;
(b) nothing herein contained shall be construed as imposing upon
the Company any liability in respect of the destruction of
any document earlier than as aforesaid or in any other
circumstances which would not attach to the Company in the
absence of this Article; and
(c) reference herein to the destruction of any document include
references to the disposal thereof in any manner.
117. UNTRACED SHAREHOLDERS
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(a) The Company shall be entitled to sell at the best price reasonably
obtainable any share of a holder or any share to which a person
is entitled by transmission if and provided that:
(i) for a period of twelve years no cheque or warrant sent by
the Company through the post in a pre-paid letter
addressed to the holder or to the person entitled by
transmission to the share at his address on the
Register or other the last known address given by the
holder or the person entitled by transmission to which
cheques and warrants are to be sent has been cashed and no
communication has been received by the Company from the
holder or the person entitled by transmission (provided that
during such twelve year period as least three dividends
shall have become payable in respect of such share);
(ii) the Company has at the expiration of the said period of
twelve years by advertisement in a national newspaper in
both the State and the United Kingdom and in a newspaper
circulated in the area in which the address referred to in
sub-paragraph (a)(i) of this Article is located given notice
of its intention to sell such share;
(iii) the Company has not during the further period of three
months after the date of the advertisement and prior to the
exercise of the power of sale received any communication
from the holder or person entitled by transmission.
(b) To give effect to any such sale the Company may appoint any person to
execute as transferor an instrument of transfer of such share and
such instrument of transfer shall be as effective as if it had been
executed by the holder or the person entitled by transmission to such
share. The transferee shall be entered in the Register as the holder
of the shares comprised in any such transfer and he shall not be
bound to see to the application of the purchase moneys nor shall his
title to the shares be affected by any irregularity in or invalidity
of the proceedings in reference to the sale.
(c) The Company shall account to the holder or other person entitled to
such share for the net proceeds of such sale by carrying all moneys
in respect thereof to a separate account which shall be a debt of the
Company and the Company shall be deemed to be a debtor and not a
trustee in respect thereof for such holder or other person. Moneys
carried to such separate account may either be employed in the
business of the Company or invested in such investments as the
Directors may from time to time think fit.
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(d) Any such amount carried to a separate account which has remained
unclaimed for twelve years from the date it was carried to such
account shall, if the Directors so resolve, be forfeited and cease to
remain owing by the Company.
118. INDEMNITY
Subject to the provisions of and so far as may be allowed by the
Acts, every Director, Managing Director, Auditor, Secretary or other
officer 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 in
relation thereto 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 under
any statute for relief from liability in respect of any such act or
omission in which relief is granted to him by the Court.
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NAMES, ADDRESSES AND DESCRIPTIONS of SUBSCRIBERS
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Bridget Trant,
Highdown Hill,
Newcastle,
County Dublin
Formations Manager
Susan Lawless,
14 Springhill Park,
Blackrock,
County Dublin
Systems Manager
Dated this 25th day of July 1989
Witness to the above signatures: Geraldine Reynolds
39 Birchwood Heights
Dublin 24
Secretary
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