EXHIBIT 1.2
[THE BOC GROUP PLC LOGO]
The Companies Acts 1985 to 1989
COMPANY LIMITED BY SHARES
ARTICLES
OF
ASSOCIATION
(Adopted on 17th January 1997,
amended on 27th February 1998, 2nd February 2001,
18th January 2002 and 23rd January 2004)
INTERPRETATION
1. EXCLUSION OF TABLE A
The regulations in The Companies (Tables A to F) Regulations 1985 and any
similar regulations in any other LEGISLATION relating to companies do not
apply to BOC, except where they appear in these articles.
2. COMPLIANCE WITH LEGISLATION, SHAREHOLDER RESOLUTIONS AND EXISTING SHARE
RIGHTS
BOC, its directors and shareholders must comply with any requirements of
LEGISLATION and resolutions passed by the shareholders when exercising any
of the powers and rights contained in these articles. All existing share
rights must also be observed.
3. DEFINITIONS
(A) Certain words and expressions have defined meanings when used in these
articles (if not inconsistent with the subject or context in which they
appear). These are set out below:
"ADDRESS" in relation to electronic communications,
has the meaning given by Section 262 of the
Companies Act;
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"BOC" means The BOC Group plc;
"CERTIFICATED SHARE" means a share which is not a CREST share
and is normally held in paper form;
"CREST" means the electronic settlement system for
securities traded on the London Stock
Exchange and owned by CREST Co, or any
similar system;
"CREST SHARE" means a share which is noted on the
shareholders' register as being held
through CREST in uncertificated form;
"COMPANIES ACT" means The Companies Act 1985, as amended;
"ELECTRONIC COMMUNICATION" has the meaning given by Section 15 of the
Electronic Communications Act 2000;
"LEGISLATION" means every statute (and any orders,
regulations or other subordinated
legislation made under it) in force from
time to time affecting BOC;
"PAID" means paid or credited as paid;
"UNCERTIFICATED SECURITIES means The Uncertificated Securities
REGULATIONS" Regulations 1995 as amended from time to
time and any legislation which supplements
or replaces such regulations; and
"UNITED KINGDOM" means Great Britain and Northern Ireland.
(B) When used in these articles words appearing in the singular will include a
reference to the plural and words appearing in the plural include
reference to the singular. Any word taking a masculine form includes the
feminine form. References to individuals or people include companies.
(C) Any reference to any provision of LEGISLATION should be taken to refer to
the provision as it is amended or re-enacted from time to time.
(D) Any words or expressions defined in the COMPANIES ACT will (if not
inconsistent with the subject or context in which they appear) have the
same meanings in these articles.
(E) An explanation of certain words and expressions used in these articles is
given in the glossary at the end of these articles. These and the terms
defined above are highlighted by bold text each time they appear in the
text.
4. FORM OF RESOLUTION
(A) Where shareholders are required to pass an ORDINARY RESOLUTION, a
SPECIAL or EXTRAORDINARY RESOLUTION will be equally effective. If an
EXTRAORDINARY RESOLUTION is required, a SPECIAL RESOLUTION will be
equally effective.
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(B) A written resolution signed by all shareholders who would have been
entitled to vote on it at a general meeting will be as effective as
a resolution passed at a general meeting which is properly held. A
written resolution may be passed by using multiple copies of the
resolution, each signed by one or more shareholders. These copies
may be received by the shareholder by fax or electronic mail.
SHARE CAPITAL
5. AUTHORISED SHARE CAPITAL
BOC'S authorised share capital is Pound Sterling147,500,000 made up of
590,000,000 shares of 25p each.
6. RIGHTS ATTACHED TO SHARES
BOC may issue shares with any rights and restrictions. Any rights or
restrictions must be approved by an ORDINARY RESOLUTION of the
shareholders or by the directors.
7. REDEEMABLE SHARES
BOC may issue shares which are redeemable, either automatically or if BOC
or the shareholder chooses.
8. PURCHASE OF BOC'S SHARES
BOC may purchase or contract to purchase any of its shares. However, where
there are other shares in issue listed on the London Stock Exchange
allowing holders to convert them into the class of shares to be
repurchased at any time, the holders of the convertible shares must first
pass an EXTRAORDINARY RESOLUTION approving the purchase at a class
meeting. A resolution is not required if the terms on which the
convertible shares were issued allow the purchase. The directors are not
required to select the shares to purchase in any particular manner.
9. VARIATION OF RIGHTS
The rights attached to any class of shares may be changed. Any change or
removal of a right must be approved either in writing by shareholders
holding at least three quarters in NOMINAL VALUE of that class of shares
or by an EXTRAORDINARY RESOLUTION passed at a class meeting of those
shareholders. Class meetings and the general provisions governing them are
described in article 54.
10. NEW SHARES OF EQUAL PRIORITY
Where new shares are created or issued which RANK EQUALLY with any other
existing shares, the rights of the existing shares will not be affected
unless the terms of the existing shares say otherwise.
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11. UNISSUED SHARES
The directors may decide how to deal with any shares which have not been
issued. They may, for instance, offer the shares for sale, grant options
to acquire them, allot them or dispose of the shares in any other way. The
directors may decide the time, price and terms of the share disposal.
11A. TREASURY SHARES
The directors may decide how to deal with all (if any) shares in BOC
lawfully held by or on behalf of BOC. The directors may, for instance,
offer the shares for sale, grant options to acquire them, allot them or
dispose of the shares in any other way, subject to the provisions of
legislation.
12. PAYMENT OF COMMISSION
In connection with any share issue, BOC may pay commissions and brokers'
fees.
13. TRUSTS NOT RECOGNISED
BOC will only recognise and deal with the registered owner of any share.
If any share is held on any kind of trust, it makes no difference to BOC
that the share may not be owned outright by the registered owner. The only
exception, when BOC will recognise the beneficial owner of a share held
under a trust is where it is obliged to do so by law or because of a court
order.
14. SUSPENSION OF RIGHTS ON NON-DISCLOSURE OF INTEREST
(A) BOC may under the COMPANIES ACT send out notices to those it knows
or thinks has an interest in its shares. In the notice, BOC will ask
for details of those who do have an interest and the extent of their
interest in a particular holding of shares. In these articles this
notice is referred to as a "statutory notice" and the holding of
shares is referred to as the "identified shares".
(B) When a person receives a statutory notice, he has 14 days to comply
with it. If he does not do so, BOC may decide to restrict the rights
relating to the identified shares and give a further notice, known
as a restriction notice. The restriction notice will take effect
when it is delivered. The restriction notice will state that the
identified shares no longer give the shareholder any right to attend
or vote at any meeting or appoint a proxy for meetings.
(C) Where the identified shares make up 0.25 per cent. or more (in
NOMINAL VALUE or in number) of BOC'S shares, or any class of shares,
the restriction notice may also contain the following further
restrictions:
(i) the directors may withhold any dividends (including scrip
dividends) in respect of the identified shares; and
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(ii) the directors may refuse to register a transfer of any of the
identified shares unless the directors are satisfied that they
have been sold outright to an independent third party. The
independent third party must not be connected with the
registered shareholder or with anyone else whom BOC believes
is interested in the shares. Any sale through a stock exchange
on which BOC'S shares are listed or by way of accepting a
take-over offer will be treated as a sale to an independent
third party.
(D) Once a restriction notice has been given, the directors are free to
cancel or suspend its effect at any time they think fit. In
addition, they must cancel the restriction notice within 7 days of
being satisfied that all information requested in the statutory
notice has been given. Also, where any of the identified shares are
sold and the directors are satisfied that they were sold outright to
an independent third party, the transferred shares will no longer be
affected by the restriction notice.
(E) When a restriction notice is cancelled or stops being effective, BOC
will pay any money which it had withheld to the person who would
have received the money originally. The shareholder, or person
automatically entitled to the shares by law, may ask BOC to pay it
to someone else. BOC will not pay interest on this money.
(F) The restriction notice will apply to any new shares issued to the
holder of the identified shares as a result of any rights attaching
to the identified shares. The directors may also make the
restrictions in the restriction notice apply to any right to an
allotment of new shares associated with the identified shares.
(G) If a shareholder receives a restriction notice, he may ask BOC for a
written explanation of why the notice was given, or why it has not
been cancelled. BOC must respond within 14 days of receiving the
request.
(H) The rights given to BOC in this article are in addition to any
statutory rights which it might have.
15. CREST SHARES
(A) Under the UNCERTIFICATED SECURITIES REGULATIONS, the directors may
allow the ownership of selected shares to be evidenced without share
certificates and for these shares to be transferred through CREST.
The directors may select and make arrangements for any class of
shares to participate in CREST in this way, provided that the shares
of the class are identical in all respects.
As long as the directors comply with the UNCERTIFICATED SECURITIES
REGULATIONS and the rules of CREST, they may also withdraw a class
of shares from being transferred through CREST and from allowing
ownership of them to be evidenced without share certificates.
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For the avoidance of doubt, CREST SHARES do not form a class of
shares separate from CERTIFICATED SHARES with the same rights.
(B) These articles will not apply to CREST SHARES to the extent that
they are inconsistent in any way with:
(i) holding shares in an uncertificated form;
(ii) transferring shares through CREST; or
(iii) any provision of the UNCERTIFICATED SECURITIES REGULATIONS.
(C) CREST SHARES may be changed to become CERTIFICATED SHARES and
CERTIFICATED SHARES may be changed to become CREST SHARES, provided
the requirements of the UNCERTIFICATED SECURITIES REGULATIONS and
the rules of CREST are met. The directors will record in the
shareholders' register whether particular shares are held as
CERTIFICATED SHARES or CREST SHARES.
16. RIGHT TO SHARE CERTIFICATES
(A) When a shareholder is first registered as the holder of any
CERTIFICATED SHARES of any class, he is entitled, free of charge, to
a separate share certificate for that class of shares.
(i) Where the shares have been allotted to him, the certificate
will be sent within 1 month of the allotment.
(ii) Where fully PAID shares have been transferred to him, the
certificate will be sent within 14 days of BOC receiving the
share transfer form or the CREST OPERATOR INSTRUCTION.
(iii) Where the partly PAID shares have been transferred to him, the
certificate will be sent within 2 months of BOC receiving the
share transfer form or the CREST OPERATOR INSTRUCTION.
The terms of issue of particular shares may specify different
periods for sending out certificates. Where they do, these must be
followed. The certificates will also be sent earlier where the
Listing Rules of the London Stock Exchange require it.
(B) Where a CERTIFICATED SHARE is held jointly, BOC does not have to
issue more than one certificate for that share. When BOC gives a
share certificate to one joint shareholder, the effect is as if it
has been delivered to all of the joint shareholders.
(C) When a shareholder transfers some, but not all, of the shares
represented by a share certificate, he is entitled, free of charge,
to another certificate for the remaining shares.
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(D) BOC must also observe any requirements of the UNCERTIFICATED
SECURITIES REGULATIONS and the rules of CREST when issuing share
certificates. Where LEGISLATION allows, BOC does not need to issue
share certificates for CERTIFICATED SHARES.
(E) BOC will have fulfilled its obligations when sending a share
certificate, if it posts it or delivers it to the address requested
by the shareholder within the time required by these articles.
17. REPLACEMENT OF SHARE CERTIFICATES
(A) Where a shareholder has 2 or more share certificates in respect of
one class of shares, he may return the certificates to BOC and
receive a single new certificate for his shares. BOC will not charge
for this.
(B) Where a shareholder would like more than one certificate for his
shares of a particular class, he may ask BOC to issue more than one
certificate in place of the existing share certificate. The
shareholder should specify the portion of his shares to be covered
by each new share certificate. The directors need not however comply
with this request. The directors may require the shareholder to pay
BOC'S expenses associated with issuing more than one certificate.
(C) Where a share certificate is worn out or damaged, the shareholder
may obtain a replacement once he has returned the original to BOC. A
shareholder may also request a new certificate if the original is
lost, stolen or destroyed. However, before issuing a replacement the
directors may require written confirmation that the certificate is
missing, together with a document, signed by the shareholder,
committing him to pay BOC any amount it loses as a result of the
loss of the share certificate. This document is known as an
indemnity. The directors may also require the shareholder to pay
BOC'S expenses associated with issuing any replacement certificate.
(D) Where there are joint shareholders for particular shares, any one of
the joint holders may request replacement share certificates.
18. FORM OF SHARE CERTIFICATES
Share certificates will be issued as the directors decide in accordance
with the terms of the issue. If signatures are used on share certificates
they may be applied by any mechanical means or printed on the certificate.
The certificates will give the number and class of shares and the amounts
PAID on the shares.
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BOC'S RIGHTS OVER PARTLY PAID SHARES
19. BOC'S RIGHTS OVER PARTLY PAID SHARES
BOC has a right to reclaim and sell all partly PAID shares. This right is
known as a lien and constitutes security over the shares. It has priority
over any other lien or charge over the shares and covers any money which
the shareholder still has to pay BOC for the shares. It may be waived
wholly or partially by the directors for a specified time.
20. ENFORCING THE RIGHT BY SALE
Where a shareholder fails to pay BOC any amount due on his partly PAID
shares, the directors can enforce BOC'S lien by selling all or any of them
in any way they decide. The directors may not, however, sell the shares
until all the following conditions are met:
(i) the money owed by the shareholder must be payable immediately;
(ii) the directors must have given written notice (which includes,
subject to applicable LEGISLATION, ELECTRONIC COMMUNICATION) to the
shareholder. The notice must state the amount of money due, it must
demand payment of this sum and state that the shareholders' shares
may be sold if the money is not PAID. Where the shares have been
transferred to someone else automatically by law and he has given
BOC a UNITED KINGDOM address, BOC may send the notice to him instead
of the shareholder; and
(iii) at least 14 days must have passed since the notice was given.
If the shares are sold, the buyer will own the shares even if the
directors were not entitled to sell the shares or if in some other way the
sale may not have been valid.
21. APPLICATION OF PROCEEDS OF SALE
Where the directors sell any shares under article 20, the proceeds will
first be used to pay BOC's expenses associated with the sale. The
remaining money will be used to pay the amount which is immediately
payable on the shares and any balance will be passed to the previous
shareholder. BOC will, however, retain a right over any money passed to
the previous shareholder. This right will cover any money which is still
due to BOC on the shares but which is not immediately payable. BOC will
have the same rights over this money as it had over the shares immediately
before they were sold.
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CALLS ON SHARES
22. CALLS ON SHARES
At any time the directors may call on shareholders to pay any money which
has not yet been PAID to BOC for their shares. This demand is known as a
call. The directors will make a call by giving at least 14 days' written
notice (which includes, subject to applicable LEGISLATION, ELECTRONIC
COMMUNICATION) to the shareholders, stating when and where the payment is
to be made. A shareholder will be liable to pay the call even if he later
transfers the shares. A call is treated as having been made as soon as the
directors have passed a resolution authorising it.
23. PAYMENT OF CALLS
A shareholder must pay the call as and when specified in the notice. The
directors may decide that the money due on a call may be PAID by
instalments. The directors may also decide to cancel or postpone a call.
24. LIABILITY OF JOINT HOLDERS
All joint shareholders are jointly and severally liable to pay any calls
in respect of their shares. This means that any one of them may be sued
for all the money due on the shares or they may be sued together.
25. INTEREST ON LATE PAYMENT OF CALLS
Where a call is made and the money due remains unpaid, the shareholder
will be liable to pay interest on the amount unpaid from the day it was
due until it is actually PAID. The directors will decide on the rate of
interest, which must not exceed 15 per cent. per year. The directors may
decide to waive all or part of the interest.
26. SUMS DUE ON ALLOTMENT TREATED AS CALLS
Where the terms of issue of a share require money to be PAID at the time
of allotment, or at any fixed date, the money due will be treated as a
call. If the money is not PAID, the articles relating to calls and
forfeiture will apply as if the call had been made for the date the money
was due.
27. POWER TO DIFFERENTIATE BETWEEN SHAREHOLDERS
When shares are issued and their terms allow, the directors may decide to
call on different shareholders to pay different amounts or at different
times.
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28. PAYMENT OF CALLS IN ADVANCE
A shareholder may pay some or all of the money due in respect of his
shares before he is called on to pay it, provided the directors choose to
accept it. The directors may agree to pay interest on any money PAID in
advance. The interest would run until the money would have been due. The
directors and the shareholder will agree the interest rate which must not
exceed 15 per cent. per year.
FORFEITURE OF SHARES
29. NOTICE IF CALL OR INSTALMENT NOT PAID
Where a shareholder fails to pay a call or an instalment of a call when it
is due, the directors may send him a notice in any manner in which notice
may lawfully be given requiring payment, together with any interest and
expenses.
30. FORM OF NOTICE
The notice must contain the following items:
(i) a demand for payment of the amount immediately payable, plus any
interest and expenses;
(ii) the date by which the total amount due must be PAID. This date must
be at least 14 days after the date of the notice;
(iii) where the payments must be made; and
(iv) a statement that if the full amount demanded is not PAID by the time
stated, or at the place stated, BOC can reclaim the shares.
31. NON-COMPLIANCE WITH NOTICE
(A) Where the notice is not complied with and while any amount is
outstanding, the shares it relates to may be reclaimed by BOC from
the shareholder. This process is known as forfeiture. This is done
by the directors passing a resolution to that effect. When shares
are forfeited, the shareholder loses all rights relating to the
shares.
(B) On receipt of the notice the shareholder may choose to surrender his
shares to BOC by returning his share certificates (if any) and
notifying BOC in writing. Where he does so, references in these
articles to forfeiture include surrender.
32. NOTICE AFTER FORFEITURE
After a share has been forfeited, BOC should notify the shareholder.
However, if this is not done, the share will still be forfeited.
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33. SALE OF FORFEITED SHARES
(A) A forfeited share becomes the property of BOC and the directors may
sell, re-allot or dispose of it on any terms and in any way they
decide.
(B) After a share has been forfeited, the directors may cancel the
forfeiture. They may, however, only do this before the share has
been disposed of, re-allotted or sold. The directors may decide the
terms of any cancellation.
34. ARREARS TO BE PAID DESPITE FORFEITURE
When a person's shares have been forfeited, he will automatically stop
being a shareholder in respect of those shares. He must return any share
certificates for the forfeited shares to BOC for cancellation. He will,
however, still be liable to pay any calls which were made, but not PAID,
before the shares were forfeited. He must also pay interest on the unpaid
amount until it is PAID unless the directors decide otherwise. The rate of
interest will be 15 per cent. per year unless the directors set a lower
rate. When considering how much money the original shareholder still owes,
the directors do not need to take account of any money they receive on
selling the shares, or the value of the shares themselves or they may
waive the amount due in whole or in part.
35. STATUTORY DECLARATION AS TO FORFEITURE OR ENFORCEMENT OF LIEN
(A) A director or the company secretary may make a statutory declaration
declaring:
(i) his position within BOC;
(ii) that a share has been properly forfeited or sold to enforce a
lien under the articles; and
(iii) when the share was forfeited or sold.
The declaration will be conclusive evidence of these facts.
(B) Where the buyer of a share is given such a declaration with a
completed share transfer form (if one is required), he will acquire
good title to the share. The new shareholder does not need to see
how any money PAID for the share is used. He will not be affected if
the directors did not act properly in forfeiting the share, or in
its sale or disposal.
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TRANSFER OF SHARES
36. TRANSFER
(A) CERTIFICATED SHARES
Unless the articles say otherwise, any shareholder may transfer some
or all of his CERTIFICATED SHARES to anyone else. A transfer of
CERTIFICATED SHARES must be made in writing and either in the usual
standard form or in any other form approved by the directors.
(B) CREST SHARES
Unless the articles say otherwise, any shareholder may transfer some
or all of his CREST SHARES in any manner allowed by the
UNCERTIFICATED SECURITIES REGULATIONS and the rules of CREST to
anyone else. No provision of these articles will apply to CREST
SHARES to the extent that it deals with transferring shares by means
of a share transfer form or by producing a share certificate.
37. EXECUTION OF TRANSFER FORMS
Where a share transfer form is used, it must be signed by, or on behalf
of, the person making the transfer. If the share is not fully PAID, the
person it is being transferred to must also sign the form. The person
making a transfer of CERTIFICATED SHARES will be treated as the
shareholder until the name of the new shareholder is put on the
shareholders' register for that share. BOC may keep all share transfer
forms once it has registered the transfer.
38. RIGHTS TO REFUSE REGISTRATION OF PARTLY PAID SHARES
The directors may, without giving any reason, refuse to register a
transfer of any shares which are not fully PAID.
39. OTHER RIGHTS TO REFUSE TO REGISTER SHARE TRANSFERS
(A) CERTIFICATED SHARES
A share transfer form must relate to only one class of shares. The
number of people to whom a share is transferred must not exceed 4.
The share certificate relating to the shares being transferred must
be sent to BOC with the share transfer form, unless the transfer is
being made by a person to whom BOC did not send a certificate. The
directors may also ask for any other evidence to show that the
person transferring the shares is entitled to do so. If they do so,
the evidence must be provided. If this article is not complied with,
the directors may refuse to register the share transfer.
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(B) CREST SHARES
The director may refuse to register a transfer in the circumstances
set out in the UNCERTIFICATED SECURITIES REGULATIONS or where the
number of people to whom the share is being transferred is greater
than 4.
40. NOTICE OF REFUSAL
If the directors refuse to register a share transfer, they must notify the
person to whom the shares were being transferred. If the transfer relates
to CERTIFICATED SHARES they must do this within 2 months of receiving the
share transfer form. If it relates to CREST SHARES, they must send the
notice within 2 months of receiving the CREST OPERATOR INSTRUCTION or any
shorter time period required by the rules of CREST or the UNCERTIFICATED
SECURITIES REGULATIONS.
41. SUSPENSION OF REGISTRATION
The directors may suspend the registration of transfers of all or a
specific class of CERTIFICATED SHARES, provided that they do not do so for
more than 30 days a year.
42. NO FEE FOR REGISTRATION
The directors may not charge for registering a share transfer or making
any other amendment to the shareholders' register.
43. UNTRACED SHAREHOLDERS
(A) BOC may sell any CERTIFICATED SHARES where:
(i) the shares have been in issue in any form for at least the
previous 12 years, no dividends have been cashed or claimed
during that period and at least 3 dividends have been PAID on
the shares;
(ii) after the 12 year period, BOC has published a notice, stating
that it intends to sell the shares. The notice must have
appeared in a national newspaper and in a local newspaper for
the area which includes the address held by BOC for sending
notices relating to those shares;
(iii) 3 months have passed since the publication of the notices, or
the later to be published if they are published on different
dates; and
(iv) the directors believe that, during the 12 year period and the
3 month period following publication of the notices, BOC has
not received any communication from the shareholder or someone
automatically entitled to the shares by law.
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(B) Any further shares which have been issued to the shareholder since
the 12 year period began may also be sold.
(C) To sell any shares in this way, the directors may appoint anyone to
sell the shares at the best price reasonably obtainable at the time
of the sale. A share transfer form signed by that person will be
just as effective as if it had been signed by the registered holder
of the shares, or by a person automatically entitled to the shares
by law. The person who buys the shares will not be affected if the
sale is irregular or invalid in any way.
(D) The proceeds of sale will belong to BOC, although it must pay that
amount of money to the shareholder, or to a person automatically
entitled to the shares by law, if requested. BOC may deduct its
expenses of sale from the amount it pays to the individual.
Following a sale, the amount to be PAID to the shareholder will be a
debt of BOC.
(E) The proceeds of sale will not be held on trust and BOC will not pay
interest on the amount. BOC will not have to account for any money
which it has earned by using the money. The directors may decide how
the money is used or invested.
AUTOMATIC ENTITLEMENT TO SHARES BY LAW
44. AUTOMATIC ENTITLEMENT ON DEATH
Where a sole shareholder or a shareholder who is the last survivor of
joint shareholders dies, his personal representatives will be the only
people recognised by BOC as being entitled to his shares. Where a joint
shareholder dies and is survived by other joint shareholders, BOC will
only recognise the surviving shareholders. The articles do not discharge
the estate of any shareholder from any liability.
45. ENTRY OF AUTOMATIC ENTITLEMENT IN REGISTER
Where someone becomes automatically entitled to a share by law, he must
provide the directors with any proof of his entitlement that they
reasonably require. The directors must then note his entitlement in the
shareholders' register within 1 month of receiving sufficient proof.
46. ELECTION WHEN AUTOMATICALLY ENTITLED BY LAW
(A) Where someone becomes automatically entitled to a share by law, he
may either be registered as the shareholder himself or choose
another person to become the shareholder.
(B) Where he chooses to be registered himself, he must advise BOC. Where
he chooses to have another person registered as the shareholder, he
must transfer the share to the person he has chosen.
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(C) For the purpose of these articles, a letter or transfer given or
signed by the person entitled by law will be treated as if it was
given or signed by the original shareholder.
(D) The directors may at any time after receiving sufficient proof of
entitlement require the person to choose to be registered as the
shareholder or to transfer the share to someone else. If he does not
comply with the request within 2 months, the directors may withhold
all payments due in respect of the share until someone has been
properly registered as the shareholder.
47. RIGHTS WHEN AUTOMATICALLY ENTITLED BY LAW
(A) Someone automatically entitled to a share by law has all rights
relating to the share, except that he is not entitled to attend and
vote at any meeting or class meeting until he is registered as the
shareholder. BOC will not recognise his rights until it has received
sufficient proof of his entitlement.
(B) As soon as someone else is automatically entitled to a share by law
the original shareholder has no rights.
(C) Any reference to a shareholder in these articles includes a
reference to a person automatically entitled to a share by law,
unless inconsistent with the subject or context in which the
reference appears.
ALTERATION OF SHARE CAPITAL
48. INCREASE, CONSOLIDATION, SUB-DIVISION AND CANCELLATION
The shareholders may pass an ORDINARY RESOLUTION to effect any of the
following:
(i) increase BOC'S share capital;
(ii) consolidate all or any of its share capital into shares of a larger
NOMINAL VALUE than the existing shares;
(iii) divide some or all of its shares into shares of a smaller NOMINAL
VALUE than the existing shares. The resolution may provide for one
or more of these shares to be given preferential treatment
concerning dividends, capital, voting or anything else;
(iv) consolidate and then divide all or any of its share capital into
shares of a different NOMINAL VALUE from the existing shares; or
(v) cancel any shares which have not been taken, or agreed to be taken,
by anyone at the date of the resolution and reduce BOC'S share
capital by the amount of the cancelled shares.
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49. FRACTIONS
Where the consolidation of shares would result in any shareholders
becoming entitled to fractions of a share, the directors may deal with the
fractions as they think fit.
50. REDUCTION OF CAPITAL
The shareholders may pass a SPECIAL RESOLUTION to reduce BOC'S share
capital, any CAPITAL REDEMPTION RESERVE, its SHARE PREMIUM ACCOUNT and any
other undistributable RESERVE in any way.
GENERAL MEETINGS
51. ANNUAL GENERAL MEETINGS
BOC must hold an annual general meeting each year. The directors will call
it and decide when and where it is to be held. There must not be a period
of more than 15 months between one annual general meeting and the next.
52. EXTRAORDINARY GENERAL MEETINGS
Any general meeting which is not an annual general meeting is called an
extraordinary general meeting. The directors may call an extraordinary
general meeting at any time.
NOTICE OF GENERAL MEETINGS
53. NOTICE OF GENERAL MEETINGS
(A) At least 21 days' written notice (which includes, subject to
applicable LEGISLATION, ELECTRONIC COMMUNICATION) must be given for
every annual general meeting and for any other meeting called to
pass any SPECIAL RESOLUTION or where SPECIAL NOTICE of a resolution
is required. For all other general meetings, at least 14 days'
notice must be given.
(B) The notice for any general meeting must state:
(i) where the meeting is to be held;
(ii) the date and time of the meeting; and
(iii) the general nature of the business for the meeting.
(C) All shareholders must be given notice of every general meeting. The
only exception is those shareholders who are not entitled to receive
a notice because of:
(i) a provision in these articles; or
(ii) the terms of issue of the shares they hold.
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Notice must also be given to the company's auditors.
(D) Where it is not practical to call a general meeting with the notice
period required above, meetings may be held on short notice. The
directors may call an annual general meeting on short notice if all
the shareholders entitled to vote at the meeting agree. They may
call any other general meeting on short notice if the majority of
the shareholders entitled to vote at the meeting agree. The majority
must also own not less than 95 per cent. in NOMINAL VALUE of the
relevant shares.
54. CLASS MEETINGS
A separate meeting of the holders of a particular class of shares is
called a class meeting. The articles relating to general meetings will
also apply to class meetings, with any necessary changes. Where a class
meeting is called to change or remove any of the rights attached to shares
of the class, the following changes to the articles relating to general
meetings will also apply:
(i) business may only be conducted if 2 or more people are present who
are shareholders or their proxies who hold at least one third in
NOMINAL VALUE of the issued shares of the class;
(ii) on a poll every shareholder is entitled to one vote for every share
he has of the class;
(iii) any shareholder who is present in person or by proxy can demand a
poll; and
(iv) at an adjourned meeting, business may be conducted if only one
person who holds shares of the class, or his proxy, is present
regardless of the number of shares he holds.
55. OMISSION OR NON-RECEIPT OF NOTICE
If the directors accidentally fail to send someone notice of a meeting or
any other document relating to the meeting, the proceedings at that
meeting will not automatically be invalid. Similarly, if, for whatever
reason, someone does not receive a notice or any other document relating
to a meeting which the directors send him, the proceedings will not be
automatically invalid.
56. POSTPONEMENT OR RELOCATION OF GENERAL MEETINGS
Where the directors consider that it is impracticable or unreasonable to
hold a general meeting at the place specified in the notice, they may move
or postpone the meeting. If they do this, an announcement of the date,
time and place of the rearranged meeting will, if practicable, be
published in at least 2 national newspapers. Notice of the business of the
meeting does not need to be given again.
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PROCEEDINGS AT GENERAL MEETINGS
57. PROCEEDING TO BUSINESS
(A) Before a meeting proceeds to business and for so long as the meeting
continues, there must be at least 5 people present who are
shareholders or their proxies and who are entitled to vote. The only
exceptions to this are contained in articles 54 (Class meetings) and
58 (Insufficient shareholders) and the appointment of a chairman of
the meeting.
(B) The shareholders need not be present in the same room, provided that
there are facilities which allow all shareholders present at the
meeting to participate in the proceedings of the meeting.
58. INSUFFICIENT SHAREHOLDERS
(A) If the number of shareholders required to proceed to business is not
present within 5 minutes of the time fixed for the meeting to start,
the meeting will be adjourned. Where the meeting is called on the
request of shareholders, however, it will be dissolved. The chairman
may extend the waiting time for up to one hour.
(B) The date, time and place of the adjourned meeting may be set out in
the original notice calling the meeting. If this is done the
adjourned meeting must be not less than 3 and not more than 28 days
later.
(C) If no details are given in the original notice, the chairman of the
meeting will decide when and where the adjourned meeting will take
place. He must choose a date which is not less than 10 and not more
than 28 days later. Shareholders must be given at least 7 days'
notice of the adjourned meeting in any manner in which notice of a
meeting may lawfully be given.
(D) At any adjourned meeting, business may be conducted if there are
only 2 people present who are shareholders or their proxies and who
are entitled to vote. The notice of an adjourned meeting must state
this.
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59. SECURITY ARRANGEMENTS
The directors may put in place arrangements which they consider to be
reasonable and appropriate for security at general meetings. This
authority includes power to refuse entry to, or eject from meetings,
people who fail to comply with the arrangements.
60. CHAIRMAN OF GENERAL MEETINGS
BOC'S chairman will be the chairman of every general meeting where he is
present. If the chairman is not present, a deputy chairman will chair the
meeting. If neither are present within 5 minutes of the time for the
meeting to start, or if the chairman and any deputy chairman are not
willing to act, the directors present may choose one willing director to
chair the meeting. If no willing director is present, the shareholders
present will elect one of their number to chair the meeting.
61. ORDERLY CONDUCT
The chairman of a meeting may take any action he considers reasonable and
appropriate for the proper and orderly conduct of the business to be
carried out at the meeting.
62. ENTITLEMENT TO ATTEND AND SPEAK
Directors may attend and speak at any general meeting and at any class
meeting. The chairman of a general meeting may also allow any one to
attend and speak where he considers that this will help the business of
the meeting.
63. ADJOURNMENTS
(A) The chairman of a general meeting may postpone or adjourn the
meeting, before or after it has started and whether or not
sufficient shareholders are present to proceed to business. He may,
however, only do this if he considers that:
(i) there is not enough room for the number of shareholders
wanting to attend;
(ii) the behaviour of anyone present is disrupting or is likely to
disrupt the meeting; or
(iii) an adjournment is necessary so that the business of the
meeting can be properly carried out.
The chairman does not need the consent of the shareholders to
adjourn the meeting for any of these reasons.
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(B) At a meeting where sufficient shareholders, or their proxies, are
present to proceed to business:
(i) the chairman may, with the consent of the majority of
shareholders, adjourn the meeting; and
(ii) the chairman must adjourn the meeting if requested to by the
majority of shareholders, or their proxies.
(C) The chairman may decide on the time and place of the adjourned
meeting, or may adjourn it indefinitely. If the meeting is adjourned
indefinitely, the directors will set the time and place of the
adjourned meeting. A reconvened meeting may only deal with business
that could have been dealt with at the original meeting.
64. NOTICE OF ADJOURNMENT
Where a meeting is adjourned indefinitely or for 30 days or more, the
directors will give at least 7 days' notice of the date, time and place of
the adjourned meeting in the same way as for the original meeting. Where
it is adjourned to a specific day within 30 days, no further notice needs
to be given. It is not necessary to give notice of the business of any
adjourned meeting.
AMENDMENTS
65. AMENDMENTS TO RESOLUTIONS
(A) Amendments may be proposed to any resolution at any time if they are
to correct an obvious error. No other amendments may be proposed to
any SPECIAL or EXTRAORDINARY RESOLUTION. Other amendments to
ORDINARY RESOLUTIONs may only be proposed where:
(i) written notice of the amendment has been delivered to the
registered office at least 48 hours before the time of the
meeting or the adjourned meeting and the chairman considers
that the amendment is not out of order; or
(ii) the chairman of the meeting decides that the amendment is
appropriate for consideration by the meeting.
(B) Where the chairman decides in good faith that an amendment is out of
order or inappropriate, his decision is final. The meeting's
decision on the unamended resolution will not be affected by an
error in the chairman's decision.
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VOTING
66. VOTES OF SHAREHOLDERS
Only shareholders who are present in person at a general meeting may vote
on a show of hands. They will have one vote each. Proxies may not vote on
a show of hands. On a poll, every shareholder present in person or by
proxy will have one vote for every 25p in NOMINAL VALUE of the shares he
holds. Shareholders may not vote where prohibited by these articles or the
rights attached to their shares.
67. METHOD OF VOTING
Voting will be carried out by a show of hands unless a poll is demanded
when or before the chairman declares the result of the show of hands. A
poll may be demanded by:
(a) the chairman of the meeting;
(b) 3 or more people present who are shareholders or their proxies and
who are entitled to vote;
(c) one or more shareholders whose shares give them together at least 10
per cent. of the total votes of all shareholders who may vote at the
meeting; or
(d) one or more shareholders whose shares allow them to vote at the
meeting and where the total amount PAID on those shares is at least
10 per cent. of the total sum PAID on all shares giving the right to
vote at the meeting.
If there is a vote by show of hands and no poll is demanded, or any demand
for a poll is withdrawn, the chairman's declaration of the outcome of the
vote will be conclusive. If a poll is demanded and the demand is then
withdrawn, any declaration by the chairman of the result of an earlier
vote on that resolution by a show of hands will stand.
68. PROCEDURE AND TIMING FOR A POLL
A poll must be taken immediately where it is demanded on a vote to elect
the chairman of the meeting, or to adjourn the meeting. In all other
cases, the chairman will decide when, where and how the poll is to be
taken. The shareholders may require the chairman to appoint scrutineers to
monitor the poll. The poll must be taken within 30 days from the date it
was demanded. It is not necessary to give notice of a poll. The result of
the poll will be treated as a decision of the meeting at which the poll
was demanded. The chairman's declaration of the outcome of the poll will
be conclusive.
69. CONTINUANCE OF OTHER BUSINESS AFTER POLL DEMAND
A demand for a poll on a particular matter will not stop a meeting from
continuing to deal with other matters.
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70. VOTING ON A POLL
On a poll a shareholder may vote either in person or by his proxy voting
for him. A shareholder may appoint more than one proxy to attend on the
same occasion, provided each is appointed in respect of different shares.
A proxy need not use all his votes or cast all the votes he uses in the
same way.
71. CASTING VOTE OF CHAIRMAN
Where equal votes are cast on a show of hands or on a poll, the chairman
of the meeting will have a casting vote.
72. VOTES OF JOINT HOLDERS
Where a share is held by more than one shareholder, only the vote of the
most senior voting shareholder will be counted. For this purpose,
seniority for that share is determined by the order in which the
shareholders' names appear in the shareholders' register.
73. VOTING ON BEHALF OF AN INCAPABLE SHAREHOLDER
Where a court has made an order about a shareholder because he is
incapable of managing his affairs, a person appointed to act for that
shareholder may vote for him. He may also exercise any other rights of the
shareholder relating to meetings. Before the representative does so
however, he must deliver any evidence of his authority which the directors
may reasonably require to the registered office at least 48 hours before
the relevant meeting (or adjourned meeting). If the notice of meeting
specifies a different place for the delivery of proxy forms, the evidence
may be delivered to that address. The person appointed to act may appoint
a proxy.
74. NO RIGHT TO VOTE WHEN SUMS OVERDUE ON SHARES
A shareholder may not vote at any general meeting or class meeting or
exercise any other right relating to meetings where he has not PAID all
amounts relating to his shares which are due at the time of the meeting.
75. OBJECTIONS OR ERRORS IN VOTING
Any objection to the right of any person to vote, or to the declared
result of a vote must be made at the meeting at which the vote is taken.
Objections must be raised with the chairman of the meeting. If the
chairman decides that the vote should stand, the vote is valid for all
purposes. The chairman's decision is final. Any objection raised after the
meeting will not affect the vote.
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PROXIES
76. EXECUTION OF PROXIES
(A) A shareholder may appoint someone to represent him at meetings by
using a proxy form. The representative is known as a proxy. A proxy
form must be in writing, signed by the shareholder appointing the
proxy, or by an attorney who must have written authority to sign the
form. It must be in any commonly used form or in any other form
which is approved by the directors. Where the proxy is appointed by
a company, the proxy form should either be sealed by that company or
signed by a director or someone else authorised to sign for it.
(B) A proxy may alternatively be appointed by ELECTRONIC COMMUNICATION
sent to the ADDRESS notified by BOC for that purpose, or by any
other lawful means authorised by the directors. Any means of
appointing a proxy which is authorised by or under this article is
subject to any terms, limitations, conditions or restrictions that
the directors may prescribe.
77. DELIVERY OF PROXIES
(A) Proxy forms must be delivered to the registered office, or to any
other place specified in the notice of meeting or in the form
itself. The appointment of a proxy by ELECTRONIC COMMUNICATION must
be received at the ADDRESS specified by BOC for the purpose, whether
specified in the notice of meeting, proxy form or in any ELECTRONIC
COMMUNICATION issued by BOC inviting shareholders to appoint a
proxy.
(B) Proxy forms must be delivered and proxy appointments by ELECTRONIC
COMMUNICATION must be received by BOC at least:
(i) 48 hours before the meeting or adjourned meeting or a poll
taken on the same day as the meeting; or
(ii) 24 hours before any other poll is taken.
(C) Evidence, satisfactory to the directors, showing the authority of a
person who has signed a form on behalf of someone else must be
delivered with the proxy form.
(D) If more than one valid proxy form or proxy appointment by ELECTRONIC
COMMUNICATION is delivered or received (as specified above) in
respect of the same share for use at the same meeting and the
details on them differ, the one which is delivered or received (as
appropriate) last will be valid. Any form or ELECTRONIC
COMMUNICATION delivered or received earlier will have no effect. If
the directors cannot decide which was delivered or received last,
none of the forms or ELECTRONIC COMMUNICATIONS will be treated as
valid.
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78. AUTHORITY OF PROXY
A proxy form or proxy appointment by ELECTRONIC COMMUNICATION will
automatically give the proxy the right to demand a poll or to join others
in demanding a poll. A proxy may also vote on any amendment to a
resolution. A proxy form or proxy appointment by ELECTRONIC COMMUNICATION
will be valid for any adjournment of the meeting to which it relates,
unless the form or appointment by ELECTRONIC COMMUNICATION itself says
that it is not. A proxy will not be entitled to speak at the meeting
without the chairman's permission.
79. IDENTITY OF PROXY
A proxy does not have to be a shareholder.
80. CANCELLATION OF PROXY'S AUTHORITY
Where a proxy form or appointment by ELECTRONIC COMMUNICATION is to be
cancelled, or the authority of a company representative is to be
withdrawn, notice of the cancellation or withdrawal must be given either
in writing to the registered office (or to any other place specified in
the notice of meeting or in the form itself) or by ELECTRONIC
COMMUNICATION to such ADDRESS specified for the purpose in the notice of
meeting, proxy form or in any ELECTRONIC COMMUNICATION issued by BOC
inviting shareholders to appoint a proxy. The notice must be given at
least:
(i) 48 hours before the meeting or adjourned meeting or a poll taken on
the same day as the meeting; or
(ii) 24 hours before any other poll is taken.
Even where a shareholder has delivered a proxy form or appointed a proxy
by ELECTRONIC COMMUNICATION, he may still attend and vote in person at the
meeting or poll. In this case, where the shareholder votes in person on a
resolution, the proxy will not be valid.
81. CORPORATE REPRESENTATIVES
Where a shareholder is a company, it may appoint a representative to act
on its behalf at any general meeting or class meeting. The representative
will be able to exercise the same powers which that company could have
exercised if it were an individual. For the purposes of these articles the
company will be present at a meeting when the representative is present.
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS
82. NUMBER OF DIRECTORS
BOC must have at least 3 directors and not more than 25. The shareholders
may change these requirements by passing an ORDINARY RESOLUTION at a
general meeting.
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83. AGE OF DIRECTORS
No one will be disqualified from being or becoming a director simply
because he has reached the age of 70. It is not necessary to give SPECIAL
NOTICE of a resolution appointing someone a director where he is 70 or
more. However, where a director is proposed for appointment or
reappointment at any general meeting, if the director will be 70 or more
at the date of the meeting, the directors will state his age in the notice
calling the meeting, or in an accompanying document. Where the directors
accidentally omit to tell shareholders the age of a director where he is
over 70, the proceedings, or any appointment or reappointment of that
director at that meeting will still be valid.
84. SHAREHOLDING QUALIFICATION
Each director is required to hold 500 ordinary shares in BOC in his own
name. He may not hold these shares jointly.
85. APPOINTMENT OF DIRECTORS BY SHAREHOLDERS
The shareholders may elect any willing person to be a director, either to
fill a vacancy or as an additional director by passing an ORDINARY
RESOLUTION. A retiring director may be reappointed.
86. APPOINTMENT OF DIRECTORS BY THE BOARD
The directors may pass a resolution to appoint any willing person to be a
director, either to fill a vacancy or as an additional director. Any
director appointed by the board must retire from office at the next annual
general meeting. He may, however, be reappointed by the shareholders.
87. NUMBER TO RETIRE
(A) All directors must retire as directors at least every three years
although they may, if willing, be reappointed by the shareholders.
(B) At every annual general meeting at least one third of the current
directors must retire as directors, although they may, if willing,
be reappointed by the shareholders. Where the number of directors is
not three or a number divisible by three, the minimum number of
directors to retire will be the number which is nearest to and less
than one third. Any directors appointed by the board under Article
86 will not be taken into account in determining who must retire by
rotation.
88. IDENTITY OF DIRECTORS TO RETIRE
The directors to retire at an annual general meeting under article 87 must
do so in the following order:
(i) any director who is 70 or over at the date of the meeting; then, if
more must retire
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(ii) any director who wishes to retire at the meeting and who does not
want to be re-elected; then, if more must retire
(iii) those directors who have been directors longest since they were last
elected. Where there are directors who were last elected on the same
date, they can agree on who is to retire. Where they do not agree,
they must draw lots to decide.
In addition, any directors appointed by the board under article 86 must
retire.
89. REMOVAL OF DIRECTORS BY SHAREHOLDERS
The shareholders may pass an ORDINARY RESOLUTION to remove any director
from office at any time. SPECIAL NOTICE must be given of this resolution.
In the resolution, they may also elect a person to replace the director
who is being removed.
90. PERSONS ELIGIBLE AS DIRECTORS
The only people who may be elected as directors at a general meeting are
the following:
(i) directors retiring at the meeting;
(ii) anyone recommended by the directors; and
(iii) anyone nominated by a shareholder in the following way:
The shareholder must be entitled to attend and vote at the meeting.
He must deliver to the registered office not less than 7 nor more
than 42 days before the day of the meeting:
(a) a letter stating that he intends to nominate another person
for election as a director; and
(b) written confirmation from that person that he is willing to be
elected.
91. TIME OF RETIREMENT
Where a retiring director is not reappointed, he will cease to be a
director when the shareholders appoint someone in his place or, where they
do not do so, at the end of the meeting. When a retiring director is
reappointed, he will continue with no break in office.
92. VACATION OF OFFICE BY DIRECTORS
In addition to the other provisions in these articles relating to the
retirement of directors, a director will no longer be a director where:
(i) he has not acquired 500 ordinary shares in BOC within 2 months of
being appointed a director;
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(ii) he ceases to hold 500 ordinary shares in BOC;
(iii) he writes a letter of resignation which is delivered at a meeting
of the directors or to the registered office;
(iv) he is or has been suffering from mental ill health and the
directors pass a resolution stating that he has ceased to be a
director;
(v) he has missed directors' meetings for a continuous period of twelve
months without permission from the directors and the directors pass
a resolution stating that he has ceased to be a director;
(vi) he receives a notice requiring him to resign, signed by all the
other directors;
(vii) a bankruptcy order is made against him or he makes any arrangement
or composition with his creditors; or
(viii) he stops or is prohibited from being a director by virtue of
LEGISLATION or any power conferred on the directors or shareholders
under these articles.
When a director stops being a director for any reason, he will also
automatically cease to be a member of any committee or sub-committee of
the board. Removal from office will be without prejudice to any claim
which the director or BOC might bring in relation to any employment
contract between him and BOC.
93. ALTERNATE DIRECTORS
(A) A director may appoint any person in his place to exercise and
discharge all his functions, powers and duties as a director. Such a
person is known as an alternate director. A director may appoint or
remove his alternate director by giving written notice to the
registered office or to a meeting of the directors (or in any other
manner approved by the directors). The notice appointing the
alternate director may contain conditions and limitations. Where the
proposed alternate director is not already a director, the
appointment will only be effective if it is also approved by the
board. An alternate director will automatically stop being an
alternate director when the director appointing him stops being a
director.
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(B) An alternate director is entitled to receive notice of all
directors' meetings and meetings of the committees of the board of
which his appointor is a member where the appointing director has
requested this. Where the appointing director is not personally
present, the alternate director will be entitled to exercise and
carry out all functions, powers and duties of his appointor.
(C) The provisions of these articles relating to directors will apply to
any alternate director except that the alternate director will not
be able to appoint an alternate director and will not be entitled to
any fees or other remuneration. An alternate director may be PAID
expenses and will be entitled to be indemnified by BOC as if he were
a director. An alternate director will be responsible to BOC for his
own actions and will not be considered to be the agent of the
director appointing him.
(D) An alternate director will have one vote for each director for whom
he acts as alternate, in addition to his own vote if he is also a
director.
94. EXECUTIVE DIRECTORS
(A) The directors may appoint a director to any executive position, on
such terms and for such periods as they think fit. They may also
terminate an appointment at any time. The directors will decide how
much remuneration a director appointed to an executive office will
receive (whether as salary, commission, profit share or any other
form of remuneration) and whether this is in addition to or in place
of his fees as a director.
(B) If the directors terminate the appointment, the termination will not
affect any right of BOC or the director in relation to any breach of
any employment contract between the director and BOC.
(C) Where a director holds the office of chairman, deputy chairman or
managing director (or joint, deputy or assistant managing director),
he will automatically stop holding that office when he stops being a
director. The termination will not affect any right of BOC or the
director in relation to any breach of any employment contract
between the director and BOC.
(D) Where a director holds any other executive office, he will not
automatically stop holding the executive office simply because he
stops being a director.
95. THE TITLE "DIRECTOR"
The directors may appoint people to posts within BOC where the job title
includes the word "director". This, in itself, will not imply that the
holder of the post is a director of BOC and he will not have any powers of
a director of BOC.
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FEES, REMUNERATION, EXPENSES AND PENSIONS
96. DIRECTORS' FEES
The total fees PAID to directors for attending normal board or committee
meetings must not exceed Pound Sterling600,000 a year or any other sum
decided on by an ORDINARY RESOLUTION at a general meeting. The fees will
be divided between some or all of the directors as the directors decide.
If the directors fail to reach agreement, the fees will be divided between
them equally. Where a director has not been a director for the whole year
he will receive a proportionately smaller amount. In addition, directors
may receive remuneration PAID under employment contracts and other
provisions of these articles.
97. ADDITIONAL REMUNERATION
Where the directors consider that a particular director acts for BOC in a
way which goes beyond attending normal board or committee meetings, they
may choose to pay him additional remuneration.
98. EXPENSES
BOC may pay the reasonable travel, hotel and incidental expenses of
directors. These must be properly incurred in attending general meetings,
meetings of the directors or committees of the directors or in any other
way connected with BOC'S business or in the performance of their duties as
directors.
99. PENSION AND BENEFITS FOR DIRECTORS
(A) The directors may decide whether to provide pensions or other
benefits to any director or former director of BOC, or any relation
or dependant of such a person.
(B) Anyone receiving such a benefit will not be disqualified from being
or becoming a director of BOC. This article does not limit any of
the powers given to the directors by the other articles, nor does it
affect the directors' rights to receive fees and remuneration under
any other article.
DIRECTORS' INTERESTS
100. DIRECTORS' INTERESTS AND VOTING
(A) As long as the director complies with article 100(K), he may enter
into any contract with BOC, or have any interest in any contract
with BOC and he may keep any profit he makes as a result of the
contract. Any reference in this article to a contract includes a
reference to any proposed contract and to any other transaction or
arrangement.
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(B) A director may hold any other position within BOC as well as being a
director. The directors will decide the terms of his other
appointment, including the length of the appointment and any
associated remuneration. A director may not, however, be BOC'S
auditor.
(C) A director may be, or become, a director or other officer or
shareholder of any company in which BOC has any interest. He does
not have to pay BOC or the shareholders any money he receives
because of his interest in the other company.
(D) The directors may use the votes relating to any shares held by BOC
in any other company in any way they decide. Where BOC has any power
of appointment in relation to another company, the directors may use
this power as they think fit. BOC may vote for one of its own
directors to be a director or officer of the other company. It may
also vote on the remuneration to be given to directors or officers
of the other company.
(E) A director may act for BOC in a professional capacity, either alone
or through his firm. He and his firm may be PAID for professional
services as if he were not a director.
(F) A director may not vote on any resolution about his own appointment
as an officer or employee of BOC or any other company in which BOC
has an interest, or about the terms or termination of such
appointment. A director also may not vote on a resolution
appointing, or terminating or varying the terms of appointment of,
anyone else as an officer or employee of a company in which BOC has
an interest and where the director wanting to vote owns 1 per cent.
or more of it.
(G) A director may not vote on any resolution concerning any contract in
which he knows he has a material interest, unless the articles
expressly allow it. For this purpose, the interests of anyone
connected with him under section 346 of the COMPANIES ACT are added
to the interests of the director himself. However, a director may
vote on resolutions about any of the following matters, as long as
the only material interests the director has in the resolution arise
because of one or more of the following matters:
(i) Giving any security, guarantee or indemnity in respect of
money lent or obligations incurred by him or by anyone else at
the request of or for the benefit of BOC or any of its
subsidiary undertakings.
(ii) Giving a third party any security, guarantee or indemnity in
respect of a debt or obligation of BOC or any of its
subsidiary undertakings for which the director himself has
assumed responsibility in whole or in part under a guarantee
or indemnity or by giving security.
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(iii) Where BOC or any of its subsidiary undertakings is offering
SECURITIES and the director is or may be entitled to
participate in the offer as a holder of SECURITIES or he is to
participate in underwriting or sub-underwriting the offer.
(iv) Any contract in which he is interested because of holding
shares or other SECURITIES of BOC or because of having any
other interest in BOC.
(v) Any contract concerning another company in which he owns 1 per
cent. or more. Article 100(H) explains how the level of a
director's ownership is measured.
(vi) Any contract relating to an arrangement for the benefit of the
employees of BOC or any of its subsidiary undertakings which
does not award him any privilege or benefit not generally
awarded to the employees to whom the arrangement relates.
(vii) Any contract concerning insurance which BOC proposes to
maintain or purchase for the benefit of directors or for the
benefit of persons including directors.
(H) Where a company in which a director owns 1 per cent. or more is
materially interested in a contract, the director will also be
treated as being materially interested in that contract. A director
will be treated as owning 1 per cent. or more of a company if he
knows that he and the people connected with him (as defined in
section 346 of the COMPANIES ACT) hold an interest in shares
representing 1 per cent. or more of any class of equity share
capital of the company or the voting rights in the company. Shares
will not count where the director (or the connected person) has no
beneficial interest in the share or is only entitled to the shares
in the future. In addition, shares will not count where they are
held in an authorised unit trust scheme in which the director, or
connected person, is involved only as a unit holder.
(I) Where a director may not vote on a particular resolution, he must
not be taken into account in determining whether there are
sufficient directors present to carry on business.
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(J) Where any question comes up at a meeting about whether a director
has a material interest or whether he may vote, and the director
does not agree to abstain from voting, the question must be referred
to the chairman of the meeting. The chairman's ruling will be
conclusive, unless the nature or extent of the director's interest
has not been fairly disclosed to the directors. Where the director
concerned is the chairman of the meeting, the matter will be decided
by a resolution of the directors. This resolution will be
conclusive, unless the nature and extent of the chairman's interest
has not been fairly disclosed to the directors. Where this course is
adopted, the chairman may be counted when considering whether there
are sufficient directors present to carry on business, but may not
vote on the matter.
(K) When a director knows that he is in any way interested in a contract
with BOC, he must tell the other directors. He must do this at the
first directors' meeting after he knows that he is interested in the
contract. To meet the requirements of this article, he may give a
general notice to the directors stating that:
(a) he is a shareholder of a specified company, or partner in a
specified business and is interested in any contract between
BOC and that company or business; or
(b) he is interested in any contract between BOC and a specified
person who is connected with him.
The notice will not be effective unless it is given at a directors'
meeting or discussed at the next directors' meeting after it is
given.
(L) The shareholders may suspend or relax the provisions of this article
by passing an ORDINARY RESOLUTION. They may also pass an ORDINARY
RESOLUTION to ratify any contract which would otherwise be in breach
of this article.
POWERS AND DUTIES OF THE BOARD
101. GENERAL POWERS OF BOC REST WITH THE DIRECTORS
The directors will manage BOC'S business and in general may use all BOC'S
powers. Where, however, any LEGISLATION, SPECIAL RESOLUTION of the
shareholders, BOC'S memorandum or these articles say that a particular
power must be exercised by the shareholders voting at a general meeting or
may not be exercised by the directors, the directors may not exercise that
power. Whether the directors may exercise a particular power at a specific
time is governed by whether a prohibition is in place when the directors
actually exercise the power. The directors may exercise all their powers
at any meeting of the directors at which sufficient directors are present
to carry on business.
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102. DELEGATION TO COMMITTEES AND OTHERS
(A) The directors may delegate any of their powers, authorities or
discretions to committees of one or more individuals. The
individuals on the committee need not be directors. Any committee
may sub-delegate any of its powers, authorities and discretions to
any individual or individuals. These individuals need not be members
of the committee or directors.
(B) Any committee must comply with any regulations specified by the
directors from time to time. The meetings of any committee will be
regulated by the same provisions as those regulating meetings of the
directors, with any necessary changes. Regulations imposed by the
directors in respect of a committee prevail in the case of
inconsistency.
(C) The directors may appoint anyone as BOC'S agent or attorney on such
terms as they think fit. These will include the purpose, powers,
authorities and discretions of the agent and any limitations or
conditions. The directors may not give an agent or attorney any
power, authority or discretion which they do not have themselves.
The directors may decide how long such an appointment will last and
may fix any terms relating to remuneration. The terms of appointment
may also allow the agent or attorney to grant any or all of his
powers, authorities or discretions to any other person. At any time
the directors may remove any person appointed under this article or
may vary the terms of the appointment. Where a person deals with an
agent or attorney in good faith without knowing of the termination
or amendment of his appointment, he will not be affected.
(D) The directors may delegate any of their powers, authorities and
discretions to any director on such terms as they think fit. The
directors may terminate or amend any delegation under this article,
but if a person deals with the director in good faith without
knowing of the termination or amendment of his delegation, he will
not be affected.
103. BORROWING POWERS
(A) The directors may exercise all BOC'S powers relating to borrowing
money, giving security and issuing debentures and other SECURITIES.
(B) The directors will limit the total borrowings of BOC and, so far as
they are able, its subsidiary undertakings. Together, BOC and its
subsidiary undertakings are known as the group. The directors will
not allow the total principal amount outstanding on the group's
borrowings to exceed 2.5 times BOC'S adjusted capital and RESERVES
unless the shareholders have passed an ORDINARY RESOLUTION allowing
it. Any borrowings owed by one member of the group to another will
not be taken into account unless specifically provided for in this
article.
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(C) BOC'S adjusted capital and RESERVES will be established by starting
with amounts taken from BOC'S latest audited consolidated balance
sheet, and then making the adjustments shown in this article.
(D) The amounts taken from BOC'S latest audited consolidated balance
sheet consist of:
(i) the amount PAID up on BOC'S issued share capital;
(ii) the amount of BOC'S consolidated capital and revenue RESERVES.
These include any SHARE PREMIUM ACCOUNT, CAPITAL REDEMPTION
RESERVE and any credit balance on BOC'S consolidated profit
and loss account. To this will be added an amount for goodwill
PAID on the acquisition of any business or asset by any member
of the group which has been written off against BOC'S RESERVES
since 30th September, 1989 to the extent that the business or
asset has not been discontinued or disposed of, and after
deducting any permanent decrease in value of these businesses
or assets; and
(iii) the amount set aside for any member of the group to pay
deferred tax or similar liability;
less:
(iv) any debit balance on BOC'S consolidated profit and loss
account;
and should exclude:
(v) any minority interests in subsidiary undertakings of BOC not
held by any member of the group; and
(vi) any amount set aside for payment of tax not covered by (iii)
above.
(E) The total is then appropriately adjusted to reflect:
(i) any change in the amount PAID up on BOC'S issued share
capital, or the amount of BOC'S consolidated capital and
revenue RESERVES since the date of BOC'S latest audited
consolidated balance sheet disregarding profits or losses
other than those resulting from transactions falling within
(iii) below. Where any share issue has been unconditionally
underwritten but not yet PAID up the proceeds of the issue
will be included if they are due within 6 months of allotment;
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(ii) any distribution declared, recommended or made by any member
of the group out of profits earned on or before the date of
BOC'S latest audited consolidated balance sheet. There will
only be an adjustment for a distribution if no provision for
that distribution is included in that balance sheet and the
distribution has not been, and will not be, made to another
member of the group;
(iii) any change in the composition of the group or in BOC'S
shareholding in a member of the group since the date of BOC'S
latest audited consolidated balance sheet and any future
change resulting in an undertaking joining or leaving the
group as a result of the transaction for which the calculation
of borrowings is required; and
(iv) anything else which the directors and the auditors consider
should be reflected.
Any amounts attributable to interests in subsidiary undertakings of
BOC not held by any member of the group will be excluded.
(F) When calculating the group's borrowings, the directors will include:
(i) the NOMINAL VALUE of the group's issued share capital not held
by members of the group where a member of the group has
guaranteed to repay it;
(ii) the principal amount of any borrowed money where no member of
the group has a beneficial interest in the principal but where
a member of the group has guaranteed to pay or repay it;
(iii) the principal amount of any debentures issued by any member of
the group where no member of the group has a beneficial
interest in the principal and any fixed or minimum premium
which has to be PAID on the final repayment of any such
debentures;
(iv) the amount outstanding under any acceptance credits opened for
any member of the group which are not acceptances of trade
bills for the purchase of goods in the ordinary course of
business;
(v) a proportion of money borrowed by one member of the group from
another where the lending member is not fully owned by BOC.
The proportion included will be equivalent to the percentage
share of the equity share capital of the lender which is not
held, directly or indirectly, by BOC.
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The directors will not include the following items in the
borrowings:
(vi) a proportion of money borrowed by a subsidiary undertaking
which is not fully owned by BOC. The proportion excluded will
be equivalent to the percentage share of the equity share
capital of the borrower which is not held, directly or
indirectly, by BOC;
(vii) amounts borrowed to repay other borrowings of any member of
the group within 6 months;
(viii) amounts borrowed by any member of the group to finance any
contract where part of the price receivable is guaranteed by
the Export Credits Guarantee Department or any other similar
government department or agency up to the amount guaranteed;
or
(ix) borrowings of a subsidiary undertaking which were outstanding
at the date it became a subsidiary undertaking but only for a
period of 12 months from that date.
(G) Certain current assets of the group will be credited against the
group's borrowings. These consist of cash, short-term deposits and
any marketable instruments in which the group's available FUNDS are
temporarily invested. A proportion of these assets equivalent to the
percentage of the equity share capital of a subsidiary undertaking
which is not held, directly or indirectly, by BOC will be excluded.
(H) Any foreign currency amounts will be translated into sterling when
calculating total borrowings. When setting the exchange rate, the
directors will use the rates used in translating the capital and
RESERVES in BOC'S most recent audited consolidated accounts. If no
rate is available for a particular currency, the directors will use
the rate on an appropriate date chosen by the auditors for this
purpose.
(I) Under some borrowing arrangements, the borrowings of a partly owned
subsidiary undertaking may be guaranteed by another member of the
group. Where this is the case, the borrowings to be taken into
account will be the borrowings of whichever member of the group
causes the greater amount of borrowings to be taken into account.
(J) A certificate or report by BOC'S auditors as to the amount of the
adjusted capital and RESERVES will be conclusive. The directors may
rely on an estimate of the adjusted capital and RESERVES made in
good faith and, if as a result the borrowing limit is inadvertently
exceeded, then the excess may be disregarded for 3 months after the
directors learn that the limit has been exceeded.
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(K) No-one dealing with BOC or any of its subsidiary undertakings need
be concerned whether the borrowing limit is observed. Borrowings
incurred or security given in breach of the borrowing limit will not
be invalid or ineffective unless the lender or the beneficiary of
the security had express notice, before the borrowings were incurred
or the security given, that the limit has been or would as a result
be breached.
104. REGISTERS
BOC may use the powers given by LEGISLATION to keep an overseas, local or
other register. The directors may make and change any regulations relating
to such registers, provided that where there are any CREST SHARES the
regulations comply with the UNCERTIFICATED SECURITIES REGULATIONS.
105. PROVISION FOR EMPLOYEES
The directors may use the powers provided by LEGISLATION to provide
benefits for employees or former employees of BOC or any of its
subsidiaries in connection with BOC or a subsidiary ceasing or
transferring the whole or part of its business.
PROCEEDINGS OF THE BOARD
106. BOARD MEETINGS
The directors may decide when to have meetings and how they will be
conducted. They may also adjourn their meetings. Any director may call a
meeting. The company secretary must call a meeting if asked to by a
director.
107. NOTICE OF BOARD MEETINGS
A meeting of the directors is called by giving notice to all the
directors. Notice may be given to a director personally, by word of mouth
or in writing, sent to him at his last known address or any other address
or fax number given by him to BOC for this purpose. A director may waive
notice of any past or future meeting.
108. PROCEEDING TO BUSINESS
The directors may decide how many directors must be present before a
directors' meeting can proceed to business. Where the directors have not
decided on any other number, there must be 2.
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109. DIRECTORS BELOW MINIMUM THROUGH VACANCIES
The directors may continue to act even where one or more of them has
stopped being a director. However, where the number of directors falls
below 3, the continuing directors or director may only act to appoint
further directors to make up the shortfall or to convene a general meeting
for the sole purpose of appointing further directors.
110. APPOINTMENT OF CHAIRMAN
(A) The directors may appoint one of their number to be the chairman or
a deputy chairman of the board. They may also at any time remove him
from that office. If the chairman is at a meeting, he will chair it
if he is willing to do so. In his absence, the chair will be taken
by a deputy chairman, if one is present and willing. If there is no
willing chairman or deputy chairman present within 5 minutes of the
time the meeting is due to start, the directors who are present may
decide which one of them will chair the meeting.
(B) Where there is more than one deputy chairman at a meeting, and the
chairman is not there, the deputy chairman to take the chair will be
the longest serving deputy chairman present.
111. VOTING
Matters to be decided at any meeting will be decided by a majority of
votes. If there are equal votes, the chairman of the meeting will have a
casting vote.
112. PARTICIPATION IN MEETINGS BY TELEPHONE
Directors or members of a committee may take part in a meeting of the
directors or a committee by using a conference telephone or any
communication equipment which allows everybody participating in the
meeting to speak to and hear each other. Alternatively, the meeting may be
conducted by a series of telephone calls from the chairman of the meeting.
Taking part in this way will count as being present at the meeting.
Meetings will be treated as taking place where the largest group of the
participants are or, if there is no such group, where the chairman of the
meeting is.
113. RESOLUTION IN WRITING
A written resolution signed by all directors or all members of a committee
at that time will be just as effective as a resolution passed by the same
directors or committee members at a meeting which is properly held. The
resolution may be passed by using several copies of the resolution, each
signed by one or more directors. These copies may be received by the
directors or committee members by fax or electronic-mail.
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114. VALIDITY OF ACTS OF BOARD OR COMMITTEE
Anything done by a meeting of the directors or a committee of them or by
anyone acting as a director or committee member will be valid, even where
it is later discovered that one of the individuals concerned was not
properly appointed. This also applies where it is later discovered that
someone was disqualified from being a director or had stopped being a
director or was not entitled to vote on a particular matter.
SECRETARY
115. APPOINTMENT AND REMOVAL OF COMPANY SECRETARY
(A) The directors will appoint the company secretary on such terms and
conditions as they think fit. The directors may also remove the
company secretary but this is without prejudice to any action for
breach of contract relating to any employment contract between the
company secretary and BOC.
(B) The directors may appoint 2 or more people to be joint company
secretaries. They may also appoint acting, deputy or assistant
company secretaries at any time as they think fit. Where a joint,
acting, deputy or assistant company secretary has been appointed,
any reference to the company secretary in these articles will
include a reference to the joint, acting, deputy or assistant
company secretary.
SEALS
116. COMPANY SEALS
(A) The directors may exercise all BOC'S powers given by LEGISLATION
relating to company seals.
(B) A document may only be sealed by BOC if authorised by the directors
or a committee of the directors. Where BOC'S COMMON SEAL is to be
used, the directors may decide who must witness the seal but where
they have not done so the document must be signed by at least one
director and the company secretary or by at least 2 directors. Where
BOC'S SECURITIES SEAL is used, no one needs to sign the documents
unless the directors or any LEGISLATION require them to.
(C) Where a signature is required to witness a seal, the directors may
decide that the individual need not sign the document himself but
that his signature may be printed on it or applied by some other
means.
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117. AUTHENTICATION OF DOCUMENTS
(A) Where a certified copy or extract of a document relating to BOC is
required, a director, company secretary or anyone appointed by the
directors with power to certify documents may certify the copies or
extracts as true copies or extracts. Where a document is not at the
registered office and a certified copy or extract is required, the
local manager or other BOC employee responsible for keeping the
document will be able to certify that it was a true copy.
(B) Where a copy of a resolution or extract of minutes is certified in
this way, the copy or extract will be conclusive evidence that the
resolution has been passed or that the extract of minutes accurately
records the proceedings to which it relates.
DIVIDENDS AND OTHER PAYMENTS
118. DECLARATION OF DIVIDENDS BY SHAREHOLDERS
The directors may recommend the amount of any final dividend. The
shareholders may then pass an ORDINARY RESOLUTION to declare the dividend,
but the amount declared must not be higher than the amount recommended by
the directors.
119. PAYMENT OF INTERIM AND FIXED DIVIDENDS BY THE DIRECTORS
The directors may pay interim dividends and fixed rate dividends when they
consider that the financial position of BOC justifies the payment. Where
shareholders with shares giving them preferential rights suffer because an
interim dividend has been PAID on other shares, as long as the directors
act in good faith, they will not be liable for the loss.
120. CALCULATION AND CURRENCY OF DIVIDENDS
(A) All dividends relating to particular shares will be PAID to those
shareholders in proportion to the amounts which were PAID on the
shares during the period for which the dividend is PAID. Any sums
PAID in advance of a call do not count in calculating the amount of
a dividend to be PAID on a share.
(B) Dividends may be declared or PAID in any currency which the
directors consider appropriate.
121. AMOUNTS DUE ON SHARES MAY BE DEDUCTED FROM DIVIDENDS
Where a shareholder owes BOC any money for calls or anything else relating
to his shares, the directors may deduct this amount from any dividend or
other money due to the shareholder in connection with the shares.
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122. PURCHASE OF ASSETS EFFECTIVE FROM PAST DATE
Where BOC buys any assets with effect from a date in the past, the profits
and losses resulting from the assets may be treated as profits or losses
of BOC from that date if the directors think fit. Similarly, where assets
are purchased with dividend or interest due, the dividend or interest may
be treated as revenue if the directors think fit. BOC will not be obliged
to CAPITALISE any of the dividend or interest income received.
123. NO INTEREST ON DIVIDENDS
BOC will not pay interest on any dividend or other money due to a
shareholder in respect of his shares.
124. WAIVER OF DIVIDENDS
Where a shareholder wants to waive his entitlement to any dividend, he may
do so by delivering a letter, signed by him, to BOC. If appropriate, the
letter may be signed by whoever has become automatically entitled to the
share by law. For the waiver to be effective, BOC must accept the letter
and act upon it. BOC may continue to pay dividends even where it has
received a letter of waiver.
125. PAYMENT PROCEDURE
(A) Any money relating to a share payable in cash may be PAID by cheque,
warrant or other financial instrument. The money will be sent by
post to the shareholder at his registered address. Where there are
joint shareholders, it will normally be sent to the shareholder
whose name is first in the shareholders' register for those shares.
The shareholder or joint holders may request in writing that the
money be sent to a different address or be made payable to another
person. BOC will have fulfilled its obligation to pay the money if
the cheque, warrant or other instrument is honoured when it is
presented to a bank.
(B) BOC may also make any payment relating to a share by bank transfer,
or similar method, to any account chosen by the shareholder, or
joint holders. The shareholder or joint holders may also agree with
BOC on any other means of payment, such as CREST. However, BOC will
not be liable for any money lost or delayed in the course of any
bank, or similar, transfer or where it has acted in accordance with
any request from the shareholder.
(C) Where someone is automatically entitled to a share by law, money in
respect of the share will be PAID to him at his address as if he
were the registered shareholder.
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126. UNCASHED DIVIDENDS
BOC may stop paying dividends where the letter is returned undelivered or
the payments left uncashed on 2 consecutive occasions. It may also stop
where one payment is returned undelivered or left uncashed and BOC has
made reasonable enquiries to establish the correct address of the
registered holder and has failed to do so. BOC will recommence sending
dividend payments if requested to do so by the shareholder, or someone
automatically entitled by law to the shares.
127. DIVIDENDS UNCLAIMED FOR 12 YEARS
Where any dividend remains unclaimed for a period of 12 years from the
date when it was declared or became due for payment, the shareholder will
lose his right to the dividend. The unclaimed dividend will become BOC'S
property. The directors may pay unclaimed dividends into a separate
account, but BOC will not be a trustee in respect of the unclaimed
dividends.
128. DIVIDENDS NOT IN CASH
The shareholders may pass an ORDINARY RESOLUTION so that a dividend is
PAID wholly or partly by distributing BOC'S assets rather than being PAID
in cash. The shareholders may only do this where it is recommended by the
directors. When assets are being distributed, the directors may settle any
problems regarding their valuation and distribution as they think fit.
129. SCRIP DIVIDENDS
The shareholders may pass an ORDINARY RESOLUTION allowing the directors to
offer a scrip dividend. In a scrip dividend the directors offer ordinary
shareholders the choice of further ordinary shares, credited as fully
PAID, instead of cash as some or all of their cash dividend. Where a scrip
dividend is offered, the following procedures will be adopted.
(i) The ORDINARY RESOLUTION may apply to a particular dividend or to
some or all dividends declared within a particular period. The
period must not end more than 5 years after the resolution is
passed.
(ii) The value of the shares the shareholder may receive must be as
nearly as possible equal to the cash dividend that he would
receive, but no greater. The value of the shares will be taken as
the average value of BOC'S ordinary shares for the 5 dealing days
starting from, and including, the day when the shares are first
quoted "ex-dividend". The average value is derived from the average
middle market quotations for BOC'S ordinary shares on the London
Stock Exchange which are published in its Daily Official List. The
shareholders may specify a different manner of valuation in the
ORDINARY RESOLUTION. A certificate or report by BOC'S auditors
stating the value of a share for any dividend will be conclusive.
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(iii) Fractions of shares may not be allotted. The directors may deal
with any entitlement to fractions of shares as they think fit.
(iv) When the directors declare or recommend any dividend, they must
also announce any intention to offer a scrip dividend. When a scrip
dividend is to be offered and the number of new shares the
shareholders will be entitled to has been calculated, the directors
must write to the shareholders explaining the procedure for
choosing new shares instead of cash.
(v) The directors may put procedures in place which enable shareholders
to decide in advance whether or not to take shares, instead of
cash, when any scrip dividend offer is made. The directors may
alter existing procedures at any time.
(vi) The directors may not offer shareholders the right to choose new
shares unless BOC has sufficient unissued shares available for
issue. BOC must also have sufficient amounts in its RESERVEs or
FUNDS to be converted into capital equal to the total NOMINAL VALUE
of the new shares to be allotted. The directors may choose which
sum will be converted into capital. Any amount in any RESERVE or
fund (including the profit and loss account) may be used.
(vii) The directors may exclude particular shareholders from any scrip
dividend offer where they think that the exclusion is necessary or
convenient. In particular, they may exclude shareholders due to
legal or practical problems under the laws of any country or the
regulations of any overseas stock exchange or regulatory body.
(viii) Where shareholders have chosen to receive shares instead of cash,
the amount of cash PAID will be reduced and new ordinary shares
will be allotted proportionately. The directors will convert a sum
equal to the total NOMINAL VALUE of the new ordinary shares to be
allotted into capital. This sum will be used to pay up the new
ordinary shares which will then be allotted and distributed to the
shareholders.
(ix) The new shares will be CERTIFICATED SHARES where they are PAID as a
dividend in respect of CERTIFICATED SHARES, and they will be CREST
SHARES where they are PAID as a dividend in respect of CREST
SHARES. However, this will not be the case where the directors, the
UNCERTIFICATED SECURITIES REGULATIONS or the rules of CREST require
otherwise.
(x) The new shares will have the same rights as the existing fully PAID
ordinary shares and will entitle their holders to all future
dividends on ordinary shares. The shares will not carry any right
to share in the dividend from which they arose.
(xi) In relation to any particular proposed dividend the directors may
withdraw a scrip dividend offer previously made to ordinary
shareholders at any time before the allotment of the additional
ordinary shares.
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CAPITALISATION OF RESERVES
130. POWER TO CAPITALISE RESERVES AND FUNDS
(A) Any sum in any RESERVE or fund (including the profit and loss
account) of BOC may be CAPITALISED.
(B) This may only happen where the shareholders have passed an ORDINARY
RESOLUTION authorising the directors to do so. The amount must be
distributed between the shareholders in proportion to their
entitlement to dividends. However, the distribution may only be made
as follows:
(i) it may be used to pay up some or all of any amount on any
issued shares which has not already been called, or PAID in
advance; or
(ii) it may be used to pay up in full any of BOC'S unissued shares
or debentures or other SECURITIES which would then be allotted
and distributed, credited as fully PAID, to the shareholders.
However, any amount taken from a SHARE PREMIUM ACCOUNT or a CAPITAL
REDEMPTION RESERVE, and any RESERVE or fund representing unrealised
profits, may only be used as set out in (ii) above.
(C) The directors may manage the CAPITALISATION and distribution process
as they think fit.
RECORD DATES
131. POWER TO CHOOSE ANY RECORD DATE
The directors may fix any date or time as the record date for any
dividend, distribution, allotment or issue by BOC.
ACCOUNTING RECORDS AND SUMMARY FINANCIAL STATEMENTS
132. RECORDS TO BE KEPT
The directors must ensure that proper accounting records are kept in
accordance with legislation. These records must explain BOC'S transactions
and show its financial position at any time with reasonable accuracy.
133. INSPECTION OF RECORDS
Shareholders are not automatically entitled to inspect any of BOC'S
records. A shareholder may only inspect them where:
(i) LEGISLATION provides that right;
(ii) the directors authorise him to do so; or
(iii) the shareholders authorise him to do so by ORDINARY RESOLUTION.
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134. SUMMARY FINANCIAL STATEMENTS
BOC may send summary financial statements to its shareholders instead of
copies of its full reports and accounts. Any shareholder may request a
copy of the full report and accounts from BOC.
DELIVERY OF NOTICES AND OTHER DOCUMENTS TO SHAREHOLDERS
135. DELIVERY OF DOCUMENTS
(A) BOC may deliver any notice or other document, including a share
certificate, to a shareholder:
(i) personally;
(ii) by posting it to, or leaving it at, the shareholder's
registered address;
(iii) through CREST, where the document relates to CREST SHARES; or
(iv) as agreed in writing with the shareholder concerned.
(B) BOC may also, subject to applicable LEGISLATION, deliver any notice
or other document (including where such notice or document is
required to be given in writing pursuant to these articles),
excluding a share certificate, to a shareholder by ELECTRONIC
COMMUNICATION where:
(i) BOC and that shareholder have agreed to the use of ELECTRONIC
COMMUNICATION for sending copies of documents to the
shareholder and:
(a) the documents are documents to which the agreement
applies; and
(b) copies of the documents are sent using ELECTRONIC
COMMUNICATION to such ADDRESS (or to one of such
ADDRESSES if more than one) as may be notified to BOC by
the shareholder for that purpose; or
(ii) BOC and that shareholder have agreed to that shareholder
having access to documents on a website (instead of the
documents being sent to him) and:
(a) the documents are documents to which the agreement
applies; and
(b) the shareholder is notified in a manner agreed for the
purpose between BOC and the shareholder of:
(1) the publication of the documents on a website;
46
(2) the address of that website;
(3) the place on that website where the documents may
be accessed and how they may be accessed; and
(4) the period of time for which the documents will be
available on the website, which must be for a
period of not less than 21 days from the date of
notification or, if later, until conclusion of any
general meeting to which the documents relate; and
(c) the documents are published on that website throughout
the period referred to in article (ii)(b)(4) above,
provided that, if the documents are published on that
website for a part but not all of such period, the
documents will be treated as published throughout that
period if the failure to publish those documents
throughout the period is wholly attributable to
circumstances which it would not be reasonable to have
expected BOC to prevent or avoid.
(C) Where there are joint shareholders, the notice or other document may
be delivered to any one of the joint holders and will be treated as
having been given to all the joint holders.
136. RECORD DATE FOR DELIVERY
Where BOC sends out notices or other documents to shareholders, it may use
the list of names and addresses on the shareholders' register at any time
up to 15 days before the notice or document is sent. Any change of details
on the register after that time will not affect the validity of the
delivery and BOC is not obliged to send any further documents to any
person entered on the shareholders' register after that date.
137. SHAREHOLDERS RESIDENT ABROAD
Where a shareholder's registered address is outside the UNITED KINGDOM, he
may give BOC a UNITED KINGDOM address to which notices or other documents
should be sent and/or an ADDRESS for the receipt of ELECTRONIC
COMMUNICATIONS. Where he does not do so, he will not be entitled to
receive any notices or other documents from BOC.
138. DELIVERY TO PEOPLE AUTOMATICALLY ENTITLED BY LAW
Where someone is automatically entitled to a share by law and the
directors have sufficient proof of his entitlement, he must give BOC a
UNITED KINGDOM address to which documents should be sent and may, if he
wishes, provide an address for delivery of ELECTRONIC COMMUNICATIONS. He
will then be entitled to receive notices or other documents at that
address as if he were the registered shareholder. However until the
directors have sufficient proof of his entitlement, where a notice or
document is sent to a shareholder in accordance with the articles, even
where another person is automatically entitled to the share by law, the
notice or document will be treated as if it had been properly given. This
is the case whether the shareholder was a sole shareholder or a joint
shareholder.
47
139. WHEN NOTICE IS TREATED AS DELIVERED
(A) Where a notice or document is sent by post, it is treated as being
delivered the day after it was posted if sent by first-class post
and the third day after posting if sent by second-class post. In
proving that a notice or document was delivered, BOC must prove that
the envelope was properly addressed and that it was posted with
postage PAID.
(B) Where a notice or document is left at a shareholder's registered
address, it is treated as being delivered on the day it was left.
(C) Where a notice or document is sent through CREST, it is treated as
being delivered when BOC, or any CREST participant acting for BOC,
sends the ISSUER-INSTRUCTION relating to the notice or document.
(D) Where a notice or other document is sent by BOC by ELECTRONIC
COMMUNICATION, it shall be deemed to have been sent at the
expiration of 48 hours from the time it was sent to an ADDRESS
supplied by the shareholder or of notification to the shareholder of
its publication on a website. Proof that a notice or other document
given or sent by ELECTRONIC COMMUNICATION was given or sent in
accordance with current guidance issued by the Institute of
Chartered Secretaries and Administrators shall be conclusive
evidence that the notice or document was sent or given.
(E) Where a notice or document is delivered by any other means agreed
with the shareholder, it is treated as being delivered when BOC has
done what it was authorised to do by the shareholder for this
purpose.
140. TIME PERIODS
Where these articles refer to a period of notice, the first day will be
the day after the notice or document is treated as delivered. The last day
of the period will be the day before the meeting, poll or other event
relating to the notice or document.
141. NOTICE WHEN POST NOT AVAILABLE
Where a general meeting cannot be called by sending a notice by post, the
directors may call the meeting by publishing the notice in at least 1
national newspaper. If this is done, notice of the meeting will be treated
as being delivered on the day the first newspaper advertisement appears.
In any such case BOC may still serve notices by ELECTRONIC COMMUNICATION,
subject always to applicable LEGISLATION. If it becomes practicable to
send notices by post at least 7 days before the meeting, the directors
will send a copy of the notice by post to those entitled to receive it and
to whom it was not sent by ELECTRONIC COMMUNICATION by way of
confirmation.
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DESTRUCTION OF DOCUMENTS
142. PRESUMPTIONS WHERE DOCUMENTS DESTROYED
(A) This article only applies where documents are destroyed in good
faith by BOC with no express notice of any claim which the document
may relate to. It applies whether a document is destroyed or
disposed of in some other way. However, BOC is not automatically
liable when it destroys any document in circumstances not covered by
this article.
(B) Where BOC destroys a cancelled share certificate more than one year
from the date it was cancelled, it will be treated as a valid share
certificate which was properly cancelled.
(C) Where BOC destroys any dividend payment instruction, or any
notification of change of name or ADDRESS of a shareholder
(including an ADDRESS for the purposes of ELECTRONIC COMMUNICATION)
more than 2 years after the instruction or notification was recorded
by BOC, the instruction or notification will be treated as a valid
and effective document. It will also be assumed that any details
from it were correctly recorded.
(D) Where BOC destroys a share transfer form more than 6 years after the
share transfer has been registered, it will be treated as a valid
and effective transfer form which was properly registered.
(E) Where BOC destroys any other document which was the basis for making
an entry on the shareholders' register more than 6 years after the
date of registration, the document will be treated as valid and
effective. It will also be assumed that the details from it were
correctly recorded in the shareholder's register.
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WINDING UP
143. DIRECTORS' PETITION
The directors may present a petition to a court for BOC to be wound up.
144. DISTRIBUTION OF ASSETS OTHER THAN CASH ON LIQUIDATION
If BOC goes into liquidation, its assets may be distributed among the
shareholders or transferred to and managed by trustees. The liquidator
must act with the approval of a SPECIAL RESOLUTION of the shareholders.
Where any assets are to be distributed among the shareholders, the
liquidator will determine the values of the assets to be distributed and
decide how they will be divided between the shareholders. Where any assets
are transferred to trustees, the liquidator may decide on the nature of
the trust. On a liquidation, no shareholder will be obliged to accept any
shares or other assets where there is any liability associated with them.
INDEMNITY
145. INDEMNITY OF OFFICERS
Where permitted by LEGISLATION, BOC may indemnify any director or other
officer against any liability. It may buy insurance for directors or
officers against any liability.
BOC will indemnify each director and other officer against any losses
suffered as a director or officer when defending any legal proceedings in
which judgment is given in his favour or he is acquitted. BOC will also
indemnify a director or officer for any losses relating to any statutory
application in which he is granted relief by the court. For the purposes
of this Article 145, no person appointed or employed by BOC as an auditor
is an officer of BOC.
50
GLOSSARY
The following list is designed simply to explain, in part, the meanings of some
of the more technical expressions used in these articles. It does not affect the
meaning of any words used in the articles.
CAPITAL REDEMPTION RESERVE: a reserve of a company's funds established to ensure
that the company's capital base remains the same when it redeems or repurchases
shares. The amount relating to the shares which had previously been in the
company's share capital or share premium account is redesignated as a part of
the capital redemption reserve when the shares are redeemed or repurchased.
CAPITALISE: where a company capitalises some or all of its reserves, it converts
the reserves into capital (such as shares). The process is known as
capitalisation.
COMMON SEAL: any seal which BOC may have under the COMPANIES ACT and which BOC
may use to execute documents.
CREST OPERATOR INSTRUCTION: once two matching sides of a share transfer have
been authenticated within CREST, the CREST operator will issue an instruction to
BOC'S registrar to register the share transfer. This instruction is a CREST
operator instruction. The operator also issues instructions to BOC'S registrar
for other purposes.
CUMULATIVE DIVIDEND: a dividend is cumulative where, if it cannot be PAID in one
year because BOC does not have enough funds, the shareholder has the right to
receive the dividend in a future year when BOC has sufficient funds to pay the
dividend.
EXTRAORDINARY RESOLUTION: a resolution passed by a majority of at least 75 per
cent. of the votes cast. Shareholders must normally be given at least 14 days'
notice of any extraordinary resolution.
IN PRIORITY: where shares are created and rank in priority to other existing
shares, the new shares entitle their holders to receive dividends or other
distributions before, or in priority to, the holders of the other shares.
ISSUER-INSTRUCTION: an instruction given electronically by or on behalf of a
company to the CREST operator in respect of its CREST SHARES.
NOMINAL VALUE: the value of the share when it was first entered in BOC'S
accounts. The nominal value is shown on the share certificate. The nominal value
of BOC'S ordinary shares is 25p. This should be contrasted with the market value
which is the price at which shares are traded.
ORDINARY RESOLUTION: a resolution passed by a majority of more than 50 per cent.
of the votes cast. Shareholders must normally be given at least 14 days' notice
of any ordinary resolution.
ORDINARY SHAREHOLDERS: holders of ordinary shares in BOC.
51
RANK EQUALLY: where certain shares rank equally with other shares, both types of
shares have exactly the same rights as each other unless it is expressly stated
otherwise in the company's articles or the terms of issue. Where limited funds
are available to meet their entitlements, the amount distributed to the holders
of all the shares of equal rank will be reduced by the same proportion.
RESERVES or FUNDS: a company's reserves, or funds, are amounts which have been
set aside in the company's accounts. For example, profits which are not PAID out
to shareholders as dividends, or used in some other way, are held in the
company's reserves. The capital redemption reserve and share premium account are
also reserves.
SECURITIES: all shares, bonds and other investment instruments issued by a
company which entitle the holder to a share in the profits or assets of that
company or to receive a cash payment from a company.
SECURITIES SEAL: a seal used to stamp a company's securities as evidence that
the company has issued them. BOC'S securities seal is like BOC'S common seal but
with the addition of the word "securities".
SHARE PREMIUM ACCOUNT: when shares are issued by BOC, the subscription money
represents the nominal value of the shares and a premium. The premium exists
because the market value of the share is generally more than its nominal value
and a company generally chooses to issue shares at a price close to the market
value. The total of these premiums is held in a reserve known as the share
premium account. This money may not be used to pay dividends.
SPECIAL NOTICE: where special notice is required of a resolution and a
shareholder is proposing it, BOC must be informed of the proposal at least 28
days before the meeting. BOC should then give its shareholders at least 21 days'
notice of the resolution, if this is practicable.
SPECIAL RESOLUTION: a resolution passed by a majority of at least 75 per cent.
of votes cast. Shareholders must normally be given at least 21 days' notice of
any special resolution.
CONTENTS
PAGE
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ARTICLES OF ASSOCIATION
INTERPRETATION 1
1. Exclusion of Table A 1
2. Compliance with legislation, shareholder resolutions and
existing share rights 1
3. Definitions 1
4. Form of resolution 2
SHARE CAPITAL 3
5. Authorised share capital 3
6. Rights attached to shares 3
7. Redeemable shares 3
8. Purchase of BOC's shares 3
9. Variation of rights 3
10. New shares of equal priority 3
11. Unissued shares 4
11A. Treasury shares 4
12. Payment of commission 4
13. Trusts not recognised 4
14. Suspension of rights on non-disclosure of interest 4
15. CREST shares 5
16. Right to share certificates 6
17. Replacement of share certificates 7
18. Form of share certificates 7
BOC'S RIGHTS OVER PARTLY PAID SHARES 8
19. BOC's rights over partly paid shares 8
20. Enforcing the right by sale 8
21. Application of proceeds of sale 8
PAGE
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CALLS ON SHARES 9
22. Calls on shares 9
23. Payment of calls 9
24. Liability of joint holders 9
25. Interest on late payment of calls 9
26. Sums due on allotment treated as calls 9
27. Power to differentiate between shareholders 9
28. Payment of calls in advance 10
FORFEITURE OF SHARES 10
29. Notice if call or instalment not paid 10
30. Form of notice 10
31. Non-compliance with notice 10
32. Notice after forfeiture 10
33. Sale of forfeited shares 11
34. Arrears to be paid despite forfeiture 11
35. Statutory declaration as to forfeiture or enforcement of lien 11
TRANSFER OF SHARES 12
36. Transfer 12
37. Execution of transfer forms 12
38. Rights to refuse registration of partly paid shares 12
39. Other rights to refuse to register share transfers 12
40. Notice of refusal 13
41. Suspension of registration 13
42. No fee for registration 13
43. Untraced shareholders 13
AUTOMATIC ENTITLEMENT TO SHARES BY LAW 14
44. Automatic entitlement on death 14
45. Entry of automatic entitlement in register 14
46. Election when automatically entitled by law 14
47. Rights when automatically entitled by law 15
PAGE
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ALTERATION OF SHARE CAPITAL 15
48. Increase, consolidation, sub-division and cancellation 15
49. Fractions 16
50. Reduction of capital 16
GENERAL MEETINGS 16
51. Annual general meetings 16
52. Extraordinary general meetings 16
NOTICE OF GENERAL MEETINGS 16
53. Notice of general meetings 16
54. Class meetings 17
55. Omission or non-receipt of notice 17
56. Postponement or relocation of general meetings 17
PROCEEDINGS AT GENERAL MEETINGS 18
57. Proceeding to business 18
58. Insufficient shareholders 18
59. Security arrangements 19
60. Chairman of general meetings 19
61. Orderly conduct 19
62. Entitlement to attend and speak 19
63. Adjournments 19
64. Notice of adjournment 20
AMENDMENTS 20
65. Amendments to resolutions 20
VOTING 21
66. Votes of shareholders 21
67. Method of voting 21
68. Procedure and timing for a poll 21
69. Continuance of other business after poll demand 21
70. Voting on a poll 22
71. Casting vote of chairman 22
72. Votes of joint holders 22
PAGE
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73. Voting on behalf of an incapable shareholder 22
74. No right to vote when sums overdue on shares 22
75. Objections or errors in voting 22
PROXIES 23
76. Execution of proxies 23
77. Delivery of proxies 23
78. Authority of proxy 24
79. Identity of proxy 24
80. Cancellation of proxy's authority 24
81. Corporate representatives 24
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS 24
82. Number of directors 24
83. Age of directors 25
84. Shareholding qualification 25
85. Appointment of directors by shareholders 25
86. Appointment of directors by the board 25
87. Number to retire 25
88. Identity of directors to retire 25
89. Removal of directors by shareholders 26
90. Persons eligible as directors 26
91. Time of retirement 26
92. Vacation of office by directors 26
93. Alternate directors 27
94. Executive directors 28
95. The title "director" 28
FEES, REMUNERATION, EXPENSES AND PENSIONS 29
96. Directors' fees 29
97. Additional remuneration 29
98. Expenses 29
99. Pension and benefits for directors 29
DIRECTORS' INTERESTS 29
100. Directors' interests and voting 29
POWERS AND DUTIES OF THE BOARD 32
PAGE
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101. General powers of BOC rest with the directors 32
102. Delegation to committees and others 33
103. Borrowing powers 33
104. Registers 37
105. Provision for employees 37
PROCEEDINGS OF THE BOARD 37
106. Board meetings 37
107. Notice of board meetings 37
108. Proceeding to business 37
109. Directors below minimum through vacancies 38
110. Appointment of chairman 38
111. Voting 38
112. Participation in meetings by telephone 38
113. Resolution in writing 38
114. Validity of acts of board or committee 39
SECRETARY 39
115. Appointment and removal of company secretary 39
SEALS 39
116. Company seals 39
117. Authentication of documents 40
DIVIDENDS AND OTHER PAYMENTS 40
118. Declaration of dividends by shareholders 40
119. Payment of interim and fixed dividends by the directors 40
120. Calculation and currency of dividends 40
121. Amounts due on shares may be deducted from dividends 40
122. Purchase of assets effective from past date 41
123. No interest on dividends 41
124. Waiver of dividends 41
125. Payment procedure 41
126. Uncashed dividends 42
127. Dividends unclaimed for 12 years 42
128. Dividends not in cash 42
129. Scrip dividends 42
PAGE
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CAPITALISATION OF RESERVES 44
130. Power to capitalise reserves and funds 44
RECORD DATES 44
131. Power to choose any record date 44
ACCOUNTING RECORDS AND SUMMARY FINANCIAL STATEMENTS 44
132. Records to be kept 44
133. Inspection of records 44
134. Summary financial statements 45
DELIVERY OF NOTICES AND OTHER DOCUMENTS TO SHAREHOLDERS 45
135. Delivery of documents 45
136. Record date for delivery 46
137. Shareholders resident abroad 46
138. Delivery to people automatically entitled by law 46
139. When notice is treated as delivered 47
140. Time periods 47
141. Notice when post not available 47
DESTRUCTION OF DOCUMENTS 48
142. Presumptions where documents destroyed 48
WINDING UP 49
143. Directors' petition 49
144. Distribution of assets other than cash on liquidation 49
INDEMNITY 49
145. Indemnity of officers 49
GLOSSARY 50