Exhibit 2.1
THE COMPANIES ACT 1985
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
TNCi UK LIMITED
(ADOPTED ON 9 MARCH 2001)
PRELIMINARY
1 The following regulations and (subject to their provisions) the regulations
contained in Table A in the Companies (Tables A to F) Regulations 1985
(`TABLE A') constitute the articles of association of the Company.
2 In regulation 1 of Table A the words `and the articles' shall be deemed to
be added after the words `these regulations' in each place where they
occur.
3 Regulations 40, 73 to 80 (inclusive), 87 and 94 to 98 (inclusive) of Table
A shall not apply to the Company.
SHARES
4 The share capital of the Company is (pound)1000 divided into 600 9 per
cent. cumulative redeemable preference shares of (pound)1 each (in these
articles called `THE CONVERTIBLE REDEEMABLE PREFERENCE SHARES') and 400
ordinary shares of (pound)1 each. The rights and restrictions attached to
each class of share are as follows -
4.1 INCOME
The profits of the Company for each financial year available for
distribution shall be applied -
(a) first, in paying to the holders of the Convertible Redeemable
Preference Shares as a class for so long as there are 600 of such
shares in issue, a fixed cumulative dividend of the sterling
equivalent on the date of payment of 9 per cent per annum on the sum
of US$600,000 credited as paid up on those shares (to be paid pro rata
to the number of such shares held) but to the extent that any of the
Convertible Redeemable Preference Shares have been converted or
redeemed or otherwise ceased to exist so that on the date of such
payment there are less than 600 Convertible Redeemable Preference
Shares in issue, such proportion of the sterling equivalent (on that
date) of nine percent per annum of US$600,000 as the number of
Convertible Redeemable Preference Shares remaining in issue bears to
the original total of 600 Convertible Redeemable Preference Shares
shall be paid to the holders of the Convertible Redeemable Preference
Shares as a class; and
(b) secondly, in paying so much of the balance as the Company may
determine to the holders of the Convertible Redeemable Preference
Shares and the holders of the ordinary shares in proportion to the
amounts paid up or credited as paid up on those shares held by them
respectively.
The dividend on the Convertible Redeemable Preference Shares shall, in so
far as there are sufficient profits available for the purpose, become
automatically due and payable on 30th June and 31st December in each year
and any payment to the holders of Convertible Redeemable Preference Shares
may be satisfied in cash or in specie.
4.2 CAPITAL
On a return of assets, on liquidation or otherwise, the surplus assets of
the Company available for distribution among the members shall be applied -
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(a) first, in paying to the holders of the Convertible Redeemable
Preference Shares as a class for so long as there are 600 of such
shares in issue, the sterling equivalent on the date of payment of
US$600,000 (to be paid pro rata to the number of such shares held) but
to the extent that any of the Convertible Redeemable Preference Shares
have been converted or redeemed or otherwise ceased to exist so that
on the date of such return, liquidation or otherwise, so that there
are less than 600 Convertible Redeemable Preference Shares in issue,
such proportion of the sterling equivalent (on that date) of
US$600,000 as the number of Convertible Redeemable Preference Shares
remaining in issue bears to the original total of 600 Convertible
Redeemable Preference Shares shall be paid to the holders of the
Convertible Redeemable Preference Shares as a class, together with a
sum equal to any arrears or accruals of the dividends on those shares
to be calculated to the date of the return of capital and to be
payable whether or not the dividends have been declared or earned; and
(b) secondly, in distributing the balance among the holders of the
Convertible Redeemable Preference Shares and the holders of the
ordinary shares in proportion to the amounts paid up or credited as
paid up on those shares held by them respectively.
4.3 REDEMPTION
(a) Subject to the provisions of the Act and to the following provisions
of this article, the Convertible Redeemable Preference Shares are
redeemable at the price of the sterling equivalent on the date of
payment of US$600,000 (to be paid pro rata to the number of such
shares held) but to the extent that any of the Convertible Redeemable
Preference Shares have been converted or redeemed or otherwise ceased
to exist so that on the date of such return, liquidation or otherwise
there are less than 600 Convertible Redeemable Preference Shares in
issue, such proportion of the sterling equivalent (on that date) of
US$600,000 as the number of Convertible Redeemable Preference Shares
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remaining in issue bears to the original total of 600 Convertible
Redeemable Preference Shares shall be paid to the holders of the
Convertible Redeemable Preference Shares as a class, together with a
sum equal to any arrears or accruals of the dividends on those shares,
to be calculated to the date on which the dividends on the redeemed
Convertible Redeemable Preference Shares cease to accrue and to be
payable whether or not the dividends have been declared or earned.
(b) The dividend on any redeemed preference shares shall cease to accrue
on the date fixed for redemption; but if the payment of the redemption
moneys on any shares is refused upon the surrender of the relative
certificate, the dividend on those shares shall accrue until the
redemption moneys are paid.
4.4 CONVERSION
(a) The Convertible Redeemable Preference Shares shall be automatically
converted into the same number of ordinary shares on written request
by the holder of a Convertible Redeemable Preference Share to the
directors of the Company.
(b) If on or before the conversion date the Company varies its issued
share capital, whether by way of a consolidation, sub-division,
increase or reduction (including a redemption or purchase of its own
shares), the rate at which the Convertible Redeemable Preference
Shares shall be converted into ordinary shares shall be adjusted in
such manner as the auditors of the Company shall certify in writing to
be in their opinion fair and reasonable; but the Company shall not at
any time on or before the conversion date so vary its issued share
capital if, as a result, an ordinary share would be issued on
conversion at a subscription price less than its nominal value.
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4.5 VARIATION OF RIGHTS
(a) The rights attached to the preference shares shall be deemed to be
varied by -
(i) the issue by the Company of any further shares (except an issue of
ordinary shares upon the conversion of the preference shares);
(ii) the issue by a subsidiary of the Company of any share otherwise
than to the Company or to a wholly owned subsidiary of the
Company;
(iii) the variation of the share capital of the Company or the
redemption or purchase by the Company of any of its shares (except
a redemption of the preference shares) in accordance with this
article;
(iv) the disposal of the whole or a substantial part of the
undertakings or assets of the Company and its subsidiaries taken
as a whole whether by a single transaction or a series of
transactions, whether related or not (except a disposal of current
assets in the ordinary course of trading);
(v) the disposal by the Company or by any of its subsidiaries of its
interest in any share or debenture or other obligation of a
subsidiary of the Company otherwise than in favour of the Company
or a wholly owned subsidiary of the Company;
(vi) the alteration to the memorandum of association of the Company
with respect to its objects or to any provision of its articles of
association;
(vii) the making of an order or the passing of an effective resolution
for winding up the Company or of any of its subsidiaries;
(viii) the modification or variation of the rights attaching to any class
of its shares;
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(ix) the transfer by the Company of any profits to reserves or any
other action (excluding any payment of dividends) which will or
may reduce the amount of the Company's profits available for
distribution;
(x) the capitalisation by the Company of any profits (whether or not
the same are available for distribution and including profits
standing to any reserve) or any sum standing to the credit of its
share premium account or capital redemption reserve;
(xi) the change by the Company of its accounting reference date or
auditors;
(xii) save as may be required from time to time to comply with changes
in the law or with Statements of Standard Accounting Practice,
Financial Reporting Standards and pronouncements of the Urgent
Issues Task Force and made with the prior approval of the Auditors
of the Company, the change by the Company of any of the Group's
accounting policies or principles (as in force on the date of the
adoption of these articles) or the basis of their application;
(xiii) the creation, extension, variation by the Company of any guarantee
save as implied by law or otherwise in the ordinary course of the
supply of goods and services by the Company;
(xiv) the lending by the Company of any money (except to employees in
advance of expenses in amounts not exceeding (pound)1,000 per
employee or in the ordinary course of business);
(xv) the appointment by the Company to or from office of any Director;
or
(xvi) the undertaking or entering into by the Company of any transaction
of any nature whatsoever -
* otherwise than by way of bargain at arms' length and upon
normal commercial terms; and
* otherwise than in the normal course of trading of the
Company.
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(b) For the purpose of this article, a disposal of a substantial part of
the assets of the Company and its subsidiaries shall be deemed to be
made if the Company or any of its subsidiaries disposes of assets with
a book value of at least 10 per cent. of the total net assets (within
the meaning of section 264 of the Act) of the Company and its
subsidiaries, as shown in their then latest audited balance sheets.
4.6 VOTING
The holders of Convertible Redeemable Preference Shares shall be entitled
to receive notice of and to attend any general meeting and shall be
entitled to vote on any resolution at a general meeting of the Company
either by proxy or on a poll and on a poll on the basis of one vote for
each Convertible Redeemable Preference share and such voting rights shall
rank pari passu with the voting rights attaching to the ordinary shares.
4.7 QUORUMS
No meeting of the members of the Company shall be quorate unless those
members present include (whether in person or by a duly authorised
representative or a proxy) the holders of not less than 50 per cent of the
Convertible Redeemable Preference Shares for the time being in issue, and
regulation 40 of Table A shall be construed accordingly.
5 The directors are generally and unconditionally authorised for the purpose
of section 80 of the Act to allot relevant securities (within the terms of
that section) up to a maximum nominal amount of (pound)998. The authority
given by this article shall expire at the end of five years beginning oN
THE date on which it was given.
6 Sections 89 and 90 of the Act shall not apply to the Company.
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TRANSFER OF SHARES
7 The directors may, in their absolute discretion and without giving any
reason, refuse to register a transfer of any share (whether or not fully
paid) to any person.
GENERAL MEETINGS
8 The words `or a resolution appointing a person as a director' shall be
deemed to be omitted from regulation 38 of Table A; and notice of meeting
need not be given to the directors (in their capacity as directors) and
regulation 38 of Table A shall be deemed to be modified accordingly.
9 No business shall be transacted at any general meeting unless a quorum is
present when the meeting proceeds to business. Two persons or, if the
Company has only one member, one person entitled to vote at the meeting,
being or each being a member or a proxy for a member or a duly authorised
representative of a corporation, shall be a quorum.
APPOINTMENT AND REMOVAL OF DIRECTORS
10 A member or members holding not less than a majority in nominal amount of
the ordinary shares of the Company for the time being in issue may appoint
a person willing to act to be a director and may remove any director
(howsoever appointed) from office, without prejudice to any claim for
damages he may have for breach of any contract of service between him and
the Company. The appointment or removal shall be made by an instrument
signed by or on behalf of the person or persons making it and delivered to
the office.
11 The directors may also appoint a person willing to act to be a director.
12 A director shall not be required to vacate his office as a director and a
person shall not be disqualified from being appointed as a director by
reason of his attaining or having attained the age of seventy or any other
age.
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DIRECTORS' GRATUITIES AND PENSIONS
13 The directors may pay, or agree to pay, gratuities, pensions and other
retirement, superannuation, death or disability benefits to any director or
former director, to any member of his family (including a spouse or former
spouse) or to any person who is or was dependent on him, and may contribute
to any scheme or fund and pay premiums for the purchase or provision of any
such benefits.
PROCEEDINGS OF DIRECTORS
14 The words `But it shall not be necessary to give notice of a such meeting
to an alternate director who is absent from the United Kingdom.' And `It
shall not be necessary to give notice of a meeting to a director who is
absent from the United Kingdom' shall be deemed to be omitted from
regulations 66 and 88 respectively of Table A.
15 The directors (including alternate directors), or any of them, may
participate in or form a meeting of the directors by means of a conference
telephone or any communication equipment which allows all the participants
to hear each other. A person so participating shall be deemed to be present
in person at the meeting and shall be counted in the quorum and be entitled
to vote accordingly. The meeting shall be deemed to take place where the
group of the highest number of participants is assembled or, if there is no
such group, where the chairman of the meeting is then present.
16 A director may as a director vote and be counted as one of the quorum upon
a motion in respect of any transaction or arrangement which he enters into
or makes with the Company or in which he is in any way interested.
THE SEAL
17 Regulation 101 of Table A shall apply only if the Company has a common
seal. Whether it does or not, a share certificate may be executed under
section 36A (4) of the Act instead of being sealed.
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NOTICES
18 Any notice to be given to or by any person pursuant to the articles shall
be deemed to be given personally in writing at the time of transmission if
it is given by telex, cable or facsimile transmission.
19 The words `instead of his registered address' shall be deemed to be
substituted for the words `but otherwise no such member shall be entitled
to receive any notice from the Company' in regulation 112 of Table A.
20 Regulation 115 of Table A shall apply to a notice posted to a member at his
registered address if outside Europe (as defined for the purposes of the
Royal Mail) only if it is sent by air mail or by means of an established
air courier service.
INDEMNITY
21 Subject to the provisions of the Act and without prejudice to the
provisions of regulation 118 of Table A, every director or other officer or
auditor of the Company shall be indemnified out of the assets of the
Company against all costs, charges, expenses or liabilities incurred by him
in the execution or discharge of his duties or in relation thereto. The
Company may purchase and maintain for any such officer or auditor insurance
against any liability which by virtue of any rule of law may attach to him
in respect of any negligence, default, breach of duty or breach of trust of
which he may be guilty in relation to the Company.
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