Exhibit 3.2
No. 1101386
THE COMPANIES ACTS 1948 TO 1989
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
DANKA BUSINESS SYSTEMS PLC
No. 1101386
THE COMPANIES ACTS 1948 TO 1989
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
DANKA BUSINESS SYSTEMS PLC
(Adopted pursuant to a Special Resolution
passed on 17 December 1999 and as amended by
Special Resolutions passed on 9 October 2001)
PRELIMINARY
1. The regulations contained in Table A in the First Schedule to the
Companies Act 1948, in Table A in the Schedule to the Companies (Tables A to F)
Regulations 1985 and in any Table A applicable to the Company under any former
enactment relating to companies shall not apply to the Company except insofar as
they are repeated or contained in these Articles.
2. In these Articles, unless the context otherwise requires:
"these Articles" means these Articles of Association or other the
articles of association of the Company from time to time in force;
"the Auditors" means the Auditors for the time being of the
Company;
"clear days" in relation to the period of a notice means that
period excluding the day when notice is given or deemed to be given and the
day for which it is given or on which it is to take effect;
"the Combined Code" means the principles of good governance and
code of best practice derived by the Committee on Corporate Governance
chaired by Sir Ronald Hampel and appended to the Listing Rules of the
London Stock Exchange;
1
"the Directors" means the Directors for the time being of the
Company or, as the case may be, the Board of Directors for the time being
of the Company or the Directors present at a duly convened meeting of the
Directors or any duly authorized committee at which a quorum is present;
"dividend" includes bonus;
"electronic communication" has the same meaning as in the
Electronic Communications Act 2000;
"Electronic Signature" means anything in electronic form which
the Directors require to be incorporated into, or otherwise be associated
with, an electronic communication for the purposes of establishing the
authenticity or integrity of the communication;
"holder" in relation to shares means the Member whose name is
entered in the Register as the holder of the shares;
"month" means calendar month;
"the Office" means the registered office for the time being of
the Company;
"paid up" includes credited as paid up;
"the Register" means the Register of Members required to be kept
by the Statutes;
"the Seal" means the common seal of the Company;
"Secretary" includes a deputy of assistant secretary, and any
person appointed by the Directors to perform the duties of the Secretary;
"the Statutes" means the Companies Act 1985 (as amended by the
Companies Act 1989), the Companies Act 1989 and every statutory
modification or re-enactment thereof for the time being in force;
"signed" and "signature" include execution under hand or under
seal or by any other method and, in the case of an electronic
communication, an Electronic Signature;
"UK Listing Authority" means the Financial Services Authority in
its capacity as the competent authority under Part IV of the Financial
Services Act 1986 and Part VI of the Financial Services and Markets Act
2000;
"Uncertificated Securities Regulations" means the Uncertificated
Securities Regulations 1995, which term shall include, where the context
requires or admits, any amendment or re-enactment thereof and the rules,
facilities and requirements of the relevant system;
"the United Kingdom" means Great Britain and Northern Ireland;
2
"in writing" and "written" include any method of representing
words in a legible and non-transitory form, including by way of electronic
communication where specifically provided in a particular Article or where
permitted by the Directors in their absolute discretion;
"year" means calendar year;
Words importing the singular number only shall include the
plural, and vice versa;
Words importing the masculine gender only shall include the
feminine gender;
Words importing individuals and words importing persons shall
include bodies corporate and unincorporated associations;
The expressions "debenture" and "debenture holder" shall
respectively include "debenture stock" and "debenture stockholder";
The expressions "recognised clearing house" and "recognised
investment exchange" shall mean any clearing house or investment exchange
(as the case may be) granted recognition under the Financial Services Act
1986 or the Financial Services and Markets Act 2000.
The expressions "in uncertificated form" and "in certificated
form" are to be interpreted in the same manner as in the Uncertificated
Securities Regulations and the expressions "Operator",
"Operator-instruction", "participating security" and "relevant system"
shall bear the meanings respectively attributed to them in the
Uncertificated Securities Regulations.
A Special or Extraordinary Resolution shall be effective for any purpose
for which an Ordinary Resolution is expressed to be required under any provision
of these Articles.
Any reference herein to the provisions of any Act shall extend to and
include any amendment or re-enactment of or substitution for the same effected
by any subsequent statute.
Subject as aforesaid, and unless the context otherwise requires, words and
expressions defined in the Statutes shall bear the same meanings in these
Articles.
Headings are inserted for convenience only and shall not affect the
construction of these Articles.
SHARES
3. The authorized capital of the Company as at the date of the adoption
of these Articles as the Articles of Association of the Company is
(pound)6,250,000 and US$500,000 divided into:
3.1 500,000,000 ordinary shares of 1.25 pence each (the "Ordinary
Shares"); and
3
3.2 500,000 6.50% senior convertible participating shares of US$1.00 each
(the "Participating Shares").
3A. Shares of a particular class may be held in uncertificated form,
subject to the Directors having made arrangements with the Operator of a
relevant system for that class of share to be admitted as a participating
security for the purpose of that relevant system. The Directors shall have power
to make such arrangements in their discretion without the consent of the
Members. In the event that the Directors shall make such arrangements, and for
so long as the relevant class of shares shall continue to be a participating
security, these Articles shall not apply to shares of the relevant class which
are in uncertificated form, to the extent that these Articles are inconsistent
with either the holding of title to such shares in uncertificated form or the
transfer of title to such shares by means of the relevant system or the
Uncertificated Securities Regulations. Where any class of shares is held in
uncertificated form, the share register for that class shall (notwithstanding
any other provision of these Articles) be maintained in accordance with the
Uncertificated Securities Regulations. Subject to the provisions of the
Uncertificated Securities Regulations, the Directors may determine that any
class of shares shall cease to be a participating security.
3B. Shares in the capital of the Company that fall within a certain class
shall not form a separate class of shares from other shares in that class
because any share in that class:
(a) is held in uncertificated form; or
(b) is permitted in accordance with the Uncertificated Securities
Regulations to become a participating security.
3C. Where any class of shares is a participating security and the Company
is entitled under any provision of the Companies Act, the Uncertificated
Securities Regulations or these Articles to sell, transfer or otherwise dispose
of, forfeit, re-allot, accept the surrender of or otherwise enforce a lien over
a share held in uncertificated form, the Company shall be entitled, subject to
the provisions of the Companies Act, the Uncertificated Securities Regulations,
these Articles and the requirements of the relevant system:
(a) to require the holder of that share in uncertificated form by
notice to change that share into certificated form within the period
specified in the notice and to hold that share in certificated form so long
as required by the Company;
(b) to require the holder of that share in uncertificated form by
notice to give any instructions necessary to transfer title to that share
by means of the relevant system within the period specified in the notice;
(c) to require the holder of that share in uncertificated form by
notice to appoint any person to take any step, including without
limitation, the giving of any instructions by means of the relevant system,
necessary to transfer that share within the period specified in the notice;
and
4
(d) to take any action that the Directors consider appropriate to
achieve the sale, transfer, disposal, forfeiture, re-allotment or surrender
of that share or otherwise to enforce a lien in respect of that share.
4. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares, any share in the Company may
be issued with such preferred, deferred or other special rights or such
restrictions, whether in regard to dividend, voting, return of capital or
otherwise as the Company may from time to time by Ordinary Resolution determine
(or, in the absence of any such determination, as the Directors may determine).
If requisite, the Company shall in accordance with the Statutes within one month
from allotting shares deliver a statement in the prescribed form containing
particulars of special rights.
5. Subject to the provisions of the Statutes:
(1) any shares may be issued on the terms that they are to be redeemed
or are liable to be redeemed at the option of the Company or the
shareholder on such terms and in such manner as may be provided by these
Articles; and
(2) subject to Article 10A(C)(xiii) the Company may purchase its own
shares (including any redeemable shares) provided that the Company shall
not purchase its own shares if at the time of such purchase there are
outstanding any convertible shares of the Company which remain capable of
being converted, unless such purchase has been sanctioned by an
Extraordinary Resolution passed at a separate Meeting of the holders of
each class of such convertible shares in accordance with Articles 16 and
17.
6. The Company shall not give any financial assistance for the
acquisition of shares in the Company except and in so far as permitted by the
Statutes.
7. The shares of the Company shall not be allotted at a discount and save
as permitted by the Statutes shall not be allotted except as paid up at least as
to one-quarter of their nominal value and the whole of any premium thereon.
8. The Company may exercise the powers of paying commissions conferred by
the Statutes to the full extent thereby permitted. The Company may also on any
issue of shares pay such brokerage as may be lawful.
9. (A) Save as otherwise provided in the Statutes or in these Articles,
all unissued shares (whether forming part of the original or any increased
capital) shall be at the disposal of the Directors who may (subject to the
provisions of the Statutes) allot (with or without conferring a right of
renunciation), grant options over, offer or otherwise deal with or dispose of
them to such persons at such times and generally on such terms and conditions as
they may determine. The Directors may at any time after the allotment of any
share but before any person has been entered in the Register as the holder
recognise a renunciation thereof by the allottee in favour of some other person
and may accord to any allottee of a share a right to effect such renunciation
upon and subject to such terms and conditions as the Directors may think fit to
impose.
(B)
5
(i) Pursuant to and in accordance with Section 80 of the Companies
Act 1985 (as amended) the Directors shall be generally and unconditionally
authorized to exercise for each Section 80 prescribed period all the powers
of the Company to allot relevant securities up to an aggregate nominal
amount equal to the Section 80 Amount; and
(ii) Pursuant to and within the terms of the said authority the
Directors shall be empowered during each Section 89 prescribed period to
allot equity securities wholly for cash (a) pursuant to a Scrip Dividend
Offer; (b) in connection with a rights issue; and (c) otherwise than in
connection with a Scrip Dividend Offer or a rights issue up to an aggregate
nominal amount equal to the Section 89 Amount as if Section 89(1) of the
Companies Act 1985 did not apply to such allotment; and
(iii) During each Section 80 prescribed period and each Section 89
prescribed period the Company and its Directors by such authority and power
may make offers or agreements which would or might require equity
securities or other relevant securities to be allotted after the expiry of
such period; and
(iv) For the purposes of this Article 9(B):
(a) "rights issue" means an offer of equity securities open for
acceptance for a period fixed by the Directors to holders of equity
securities on the register on a fixed record date in proportion to
their respective holdings of such securities or in accordance with the
rights attached thereto (but subject to such exclusions or other
arrangements as the Directors may deem necessary or expedient in
relation to fractional entitlements, record dates or legal or
practical problems under the laws of, or the requirements of any
recognised regulatory body or any stock exchange in any territory or
as regards shares held by any approved depositary or otherwise
howsoever);
(b) "Scrip Dividend Offer" has the meaning as ascribed in
Article 137 below;
(c) "Section 80 prescribed period" means any period not
exceeding 5 years for which the authority conferred under
sub-paragraph (1) is renewed by Ordinary or Special Resolution stating
the Section 80 Amount;
(d) "Section 89 prescribed period" means any period (not
exceeding 5 years on any occasion) for which the power conferred under
sub-paragraph (ii) is renewed by Special Resolution stating the
Section 89 Amount;
(e) "the Section 80 Amount" shall for any Section 80 prescribed
period be that stated in the relevant Ordinary or Special Resolution;
(f) "the Section 89 Amount" shall for any Section 89 prescribed
period be that stated in the relevant Special Resolution;
(g) the nominal amount of any securities shall be taken to be,
in the case of rights to subscribe for or to convert any securities
into shares of the Company,
6
the nominal amount of such shares which may be allotted pursuant to
such rights; and
(h) words and expressions defined in or for the purposes of Part
IV of the Companies Act 1985 (as amended) shall bear the same meanings
herein.
10A 6.50% SENIOR CONVERTIBLE PARTICIPATING SHARES
(A) Encumbrances
All Participating Shares (including any Participating Shares issued as a
dividend or by way of bonus issue pursuant to Article 10A(C)) shall, when
issued, be free from any option, charge, lien, equity, encumbrance, right of
pre-emption or any other third party rights and free from any taxes and charges
with respect to the issue thereof.
(B) Ranking
The Participating Shares shall, with respect to dividend rights and rights
on a return of capital (whether on a liquidation, winding-up, dissolution or
otherwise), on the terms set out in the following provisions of this Article
10A, rank in priority to the Ordinary Shares and each other class of Share
Capital of the Company created after the date of adoption of these Articles
which does not expressly provide that it ranks in priority to or on a par with
the Participating Shares as to dividend rights and rights on a return of capital
(collectively, the "Junior Securities"). The Participating Shares shall, with
respect to dividend rights and rights on a return of capital, rank on a par with
each other class of shares of the Company hereafter created which expressly
provides that it ranks on a par with the Participating Shares as to dividend
rights and rights on a return of capital (collectively, the "Parity
Securities"); provided, that any such securities not issued in accordance with
Article 10A(D)(iv) hereof shall be deemed to be Junior Securities. The
Participating Shares shall, with respect to dividend rights and rights on a
return of capital, rank junior to each class of shares of the Company hereafter
created which expressly provides that it ranks in priority to the Participating
Shares as to dividend rights and rights on a return of capital (collectively,
the "Senior Securities"); provided, that any such securities not issued in
accordance with Article 10A(D)(iv) hereof shall be deemed to be Junior
Securities.
(C) Dividends
(i) For each Dividend Period (as defined below), the holders of
Participating Shares shall be entitled to receive with respect to their
holdings of Participating Shares, in priority to the transfer of any sum to
reserves or any rights of holders of Junior Securities, out of the
distributable profits of the Company legally available therefor, cumulative
preferential dividends calculated based on the then effective Liquidation
Return per Participating Share at a rate per annum equal to the greater of
(i) the Stated Dividend Rate and (ii) the Ordinary Share Equivalent Rate
with respect to such Dividend Period.
(ii) In the period prior to the fifth anniversary of the Issue Date
(as defined below) the Company's obligations to pay dividends on the
Participating Shares pursuant to Article 10A(C)(i) above (including in
respect of all accumulated and unpaid dividends) shall be satisfied solely
by the issue to the holders of the Participating Shares of
7
additional Participating Shares, credited as fully paid up for cash, as
provided below. In the period commencing on the fifth anniversary of the
Issue Date, dividends in respect of the Participating Shares (including all
accumulated and unpaid dividends in respect of prior Dividend Periods which
are payable in such period) shall be payable in cash; provided, that the
Company's obligations to pay dividends on the Participating Shares pursuant
to Article 10A(C)(i) above in such period shall be satisfied by the issue
to the holders of the Participating Shares of additional Participating
Shares, credited as fully paid up for cash, to the extent that the terms of
the Company's then existing principal indebtedness (whether under its
principal bank credit facilities or pursuant to debt securities issued in
an aggregate principal amount in excess of U.S.$50 million in a bona fide
underwritten public or bona fide private offering) prohibits the payments
of such dividends in cash. The number of Participating Shares to be issued
to the holders of Participating Shares when dividends are to be satisfied
by the issue of Participating Shares shall equal the amount of the dividend
expressed in cash divided by the then effective Liquidation Return per
Participating Share, rounded down to the nearest full share after taking
into account all Participating Shares owned by the holder thereof. If
dividends are to be satisfied by the issue of Participating Shares in
accordance with this Article 10A(C)(ii), the holders of the Participating
Shares shall be deemed to have irrevocably authorized and instructed the
Directors to apply the dividend payable to such holders in subscribing in
cash for such Participating Shares and the Company irrevocably undertakes
to apply the same in accordance with such instructions.
(iii) Dividends shall be payable in arrears on each February 15, May
15, August 15 and November 15, unless such day is not a Business Day, in
which event dividends shall be payable on the next succeeding Business Day
(each such date being hereinafter referred to as a "Dividend Payment
Date"), commencing on the first Dividend Payment Date in respect of
Participating Shares which is at least seven days after the issuance
thereof. For Participating Shares issued on the original issue date of the
Participating Shares in accordance with these Articles (the "Issue Date"),
the first dividend payment shall be for the period from and including the
Issue Date up to but excluding the date of the first Dividend Payment Date,
and each dividend payment thereafter shall be for the period from and
including the most recent Dividend Payment Date to but excluding the first
Dividend Payment Date thereafter. For Participating Shares issued
subsequent to the Issue Date, the first dividend payment shall be for the
period from and including the date of issuance thereof to but excluding the
date of the first Dividend Payment Date thereafter, and each dividend
payment thereafter shall be for the period from and including the most
recent Dividend Payment Date to but excluding the first Dividend Payment
Date thereafter. Each quarterly period beginning on February 16, May 16,
August 16 and November 16 in each year and ending on and including the day
next preceding the first day of the next such quarterly period shall be a
"Dividend Period". The amount of dividends payable for each full Dividend
Period shall be computed by dividing the applicable dividend rate per annum
by four. Dividends (or amounts equal to accumulated and unpaid dividends)
payable on Participating Shares for any period less than a full quarterly
Dividend Period will be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in any period less than
one month. The record date for determination of holders of Participating
Shares entitled to receive payment of a dividend or distribution thereon
shall be, with
8
respect to the dividend payable on February 15, May 15, August 15 and
November 15 of each year, the preceding January 15, April 15, July 15 and
October 15, respectively, or such other record date as may be fixed by the
Directors from time to time, which other record date shall be no less than
30 and no more than 60 calendar days prior to the relevant Dividend Payment
Date. Dividends and distributions shall be payable to holders of record as
they shall appear on the records of the Company on the applicable record
date.
(iv) When the Company's dividend obligations are to be satisfied by
the issue of Participating Shares in accordance with Article 10A(C)(ii)
above (whether prior to the fifth anniversary of the Issue Date or
thereafter), then to the extent that the Company has insufficient
distributable profits legally available in accordance with the Statutes for
the payment of such dividends on any Dividend Payment Date, the Company
shall (to the extent that it has reserves or sums in its share premium
account legally available therefor in accordance with the Statutes) issue
to the holders of the Participating Shares, by way of bonus issue,
additional Participating Shares, except to the extent prohibited by the
Company's then existing indebtedness (whether under its principal bank
credit facilities or pursuant to debt securities issued in an aggregate
principal amount in excess of US$50 million in a bona fide underwritten
public or bona fide private offering). The number of additional
Participating Shares to be so issued and the rights and obligations
attaching thereto shall be the same as if the Company had issued such
Participating Shares as a dividend in accordance with Article 10A(C)(ii).
Any Participating Shares issued by way of a bonus issue under this Article
10A(C)(iv) shall be in lieu of dividends and the provisions of this Article
10A shall apply as if such Participating Shares had been issued as
dividends. The rights to receive Participating Shares by way of bonus issue
pursuant to this Article 10A(C)(iv) shall accrue to the holders of the
Participating Shares and not to any other holder of Share Capital.
(v) The cash equivalent of dividends on account of arrears in
respect of each Participating Share for any particular Dividend Period in
which dividends were not paid or a bonus issue was not made on the
applicable Dividend Payment Date (including, without limitation, as a
result of the Company not having available sufficient distributable
profits, reserves or sums in its share premium account available for a
bonus issue, or as a result of the rounding down of the number of
Participating Shares issuable in the payment of dividends as provided above
in Article 10A(C)(ii)) shall be automatically added to the then effective
Liquidation Return on the relevant Dividend Payment Date. Any amounts so
added to the then effective Liquidation Return in respect of such
Participating Share shall be subject to reduction as provided below in
Article 10A(C)(vi).
(vi) To the extent the Company has profits or reserves legally
available for distribution, an amount equal to accumulated and unpaid
dividends for any past Dividend Period may be declared by the Directors and
paid as a dividend (in Participating Shares or cash, as the case may be, as
provided above in Article 10A(C)(ii)) or by way of a bonus issue in lieu of
such dividend in accordance with Article 10A(C)(iv) on any subsequent
Dividend Payment Date to all holders of Participating Shares of record on
the record date for such subsequent Dividend Payment Date (including,
without limitation,
9
holders of Participating Shares issued after the record date for the
Dividend Payment Date for such past Dividend Period). Each such payment
shall automatically reduce the then effective Liquidation Return by an
amount equal to the aggregate amount of such payment divided by the total
number of Participating Shares outstanding on such record date for such
subsequent Dividend Payment Date; provided, however, that the Liquidation
Return shall not be reduced below U.S.$1,000 per share.
(vii) Dividends on the Participating Shares shall accumulate on a
daily basis. Dividends shall cease to accumulate in respect of
Participating Shares on the date of actual conversion or redemption
thereof. The amount of the dividend due on each Dividend Payment Date
shall, subject to Article 10A(C)(iv), be paid out of the profits of the
Company available for distribution in accordance with the Statutes, without
the need for any resolution of the Directors or of the Members in General
Meeting.
(viii) To the extent that the Company is legally permitted to do so
but save where a majority of the Directors decides bona fide that to do so
would be materially prejudicial to the business of any subsidiary
undertaking, the Company shall use its best efforts to procure the
distribution to the Company by its subsidiary undertakings in respect of
each financial year by way of dividend or otherwise (except by the
reduction of capital or own-share purchase) of sufficient of the profits,
if any, of its subsidiary undertakings to enable the Company to pay the
dividends on the Participating Shares.
(ix) Dividends paid on the Participating Shares in an amount less
than the total amount of such dividends at the time accumulated and payable
on such shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding, and any remainder not paid as
provided above in respect of each Participating Share shall be added to the
Liquidation Return as provided above in Article 10A(C)(v) hereof.
(x) As long as any Participating Shares are outstanding, no
dividends or other distributions (other than dividends or other
distributions payable in shares of, or warrants, rights or options
exercisable for or convertible into shares of, Junior Securities and cash
in lieu of fractional shares of such Junior Securities in connection with
any such dividends) will be paid on any Junior Securities unless:
(a) full cumulative dividends on all outstanding Participating
Shares and any outstanding Parity Securities have been paid, or
declared and set aside for payment, for all Dividend Periods
terminating on or prior to the payment date of such dividend or
distribution and for the current Dividend Period;
(b) the Company has paid or set aside all amounts, if any, then
or theretofore required to be paid or set aside for all redemption
reserves, if any, for any outstanding Participating Shares or Parity
Securities; and
(c) the Company is not in default of any of its obligations to
redeem any outstanding Participating Shares or Parity Securities.
(xi) As long as any Participating Shares are outstanding, no Junior
Securities may be purchased, redeemed or otherwise acquired by the Company
or any of its subsidiaries
10
(except in connection with a reclassification or exchange of any Junior
Securities through the issuance of shares of, or warrants, rights or
options exercisable for or convertible into shares of, other Junior
Securities (and cash in lieu of fractional shares of such Junior Securities
in connection therewith) or the purchase, redemption or other acquisition
of any Junior Securities with any shares of, or warrants, rights or options
exercisable for or convertible into shares of, other Junior Securities (and
cash in lieu of fractional shares of such Junior Securities in connection
therewith)), nor may any funds be set aside or made available for any
redemption reserve for the purchase or redemption of any Junior Securities.
(xii) As long as any Participating Shares are outstanding, no
dividends or other distributions (other than dividends or other
distributions payable in shares of, or warrants, rights or options
exercisable for or convertible into shares of, Junior Securities and cash
in lieu of fractional shares of such Junior Securities in connection with
any such dividends) will be paid on any Parity Securities unless such
dividends or other distributions are declared and paid pro rata so that the
amounts of any such dividends or other distributions declared and paid per
share on outstanding Participating Shares and each other share of such
Parity Securities will in all cases bear to each other the same ratio that
the then effective Liquidation Return per share of outstanding
Participating Shares and the amount payable per share of such other
outstanding shares of Parity Securities on a solvent winding up of the
Company bear to each other.
(xiii) As long as any Participating Shares are outstanding, no Parity
Securities may be purchased, redeemed or otherwise acquired by the Company
or any of its subsidiaries (except with shares of, or warrants, rights or
options exercisable for or convertible into shares of, Junior Securities
and cash in lieu of fractional shares of such Junior Securities in
connection therewith) unless the Participating Shares and such Parity
Securities are purchased, redeemed or otherwise acquired pro rata so that
the Fair Market Value of the consideration applied to the purchase,
redemption or other acquisition of each Participating Share and each share
of such Parity Securities will in all cases bear to each other the same
ratio that the then effective Liquidation Return per outstanding
Participating Share and the amount payable per share of such other
outstanding Parity Securities on a solvent winding up of the Company bear
to each other.
(xiv) As long as any Participating Shares are outstanding, no
resolution to reduce the Company's issued share capital or any uncalled
liability thereon shall be effective unless such resolution is sanctioned
by an extraordinary resolution of the holders of the Participating Shares
held at a separate meeting of such holders.
(xv) Subject to the provisions described above in this Article
10A(C), such dividends or other distributions (payable in cash, property or
Junior Securities) as may be determined from time to time by the Directors
may be declared and paid on the shares of any Junior Securities and/or
Parity Securities and from time to time Junior Securities and/or Parity
Securities may be purchased, redeemed or otherwise acquired by the Company
or any of its subsidiaries. In the event of the declaration and payment of
any such dividends or other distributions, the holders of such Junior
Securities and/or Parity
11
Securities, as the case may be, will be entitled, to the exclusion of
holders of any outstanding Participating Shares, to share therein according
to their respective interests.
(D) Voting Rights
(i) The holders of the Participating Shares (in addition to their
rights set forth in this Article 10A(D) and otherwise provided by
applicable law) shall be entitled from time to time to such number of votes
for each Participating Share held as equals the number of Ordinary Shares
into which such Participating Share is convertible on the record date set
for determining the persons entitled to vote on any matter and shall, if
they shall exercise such entitlement, vote together with the holders of the
Ordinary Shares (and any other class or series of Share Capital, if any,
similarly entitled to vote), as a single class, on all matters to be voted
on by holders of the Ordinary Shares. Notwithstanding the preceding
sentence, the aggregate voting rights attaching to the Participating Shares
held by Cypress and Affiliates of Cypress shall in no circumstances exceed
29.99% of all voting rights from time to time exercisable by the Members of
the Company in General Meeting. If the voting rights attaching to the
Participating Shares held by Cypress and Affiliates of Cypress when
calculated in accordance with this Article 10A(D)(i) exceed 29.99%, then
the aggregate voting rights of the Participating Shares held by Cypress and
Affiliates of Cypress shall be deemed to be 29.99%, and such voting rights
shall be exercisable by Cypress (if it is a holder of Participating Shares)
and Affiliates of Cypress that are holders of Participating Shares on a pro
rata basis according to the number of issued Participating Shares held by
each such holder.
(ii) In addition to the voting rights set forth in Article 10A(D)(i),
holders of the Participating Shares shall be entitled to vote as a separate
class on matters which require (under these Articles or applicable law) a
separate class vote of the Participating Shares and shall have such other
voting rights as are set forth in this Article 10A(D).
(iii) If at any time:
(a) the Company shall have failed to redeem any outstanding
Participating Shares in accordance with these Articles; or
(b) dividends payable in cash on Participating Shares as
provided in Article 10A(C)(ii) hereof (i.e., dividends payable in the
period commencing on the fifth anniversary of the Issue Date) have not
been paid in full in cash for six consecutive Dividend Periods
regardless of whether or not the Company shall have paid dividends in
additional Participating Shares pursuant to the proviso in the second
sentence of Article 10A(C)(ii) hereof, or by way of bonus issue
pursuant to Article 10A(C)(iv) hereof,
thereafter and until, in the case of Article 10A(D)(iii)(a) above, the date
that the Company shall have fulfilled its redemption obligations or, in the
case of Article 10A(D)(iii)(b) above, until the date that all accumulated
and unpaid dividends payable as provided in Article 10A(C)(ii) hereof
(i.e., dividends payable on and after the fifth anniversary of the Issue
Date), whether or not declared, on the outstanding
12
Participating Shares shall have been paid in full and the Company shall
have paid dividends in full in cash for four additional consecutive fiscal
quarters thereafter, the number of Directors then constituting the Board of
Directors of the Company shall be increased by two and the holders of
Participating Shares, acting as a class, shall be entitled to elect the two
additional Directors to serve on the Board of Directors by majority vote at
a class meeting of the holders of the Participating Shares to be held
immediately prior to any annual meeting of shareholders or extraordinary
meeting held in place thereof, or by majority vote at an extraordinary
meeting of the holders of the Participating Shares called as hereinafter
provided, or by majority vote of the holders of the Participating Shares as
set forth in a written document signed by all such holders. The remaining
Directors of the Company shall be elected by the classes of Share Capital,
including the Participating Shares, entitled to vote therefor, voting
together, at each meeting of shareholders held for the purpose of electing
Directors, all in accordance with the terms and procedures set forth in
these Articles. As soon as, in the case of Article 10A(D)(iii)(a) above,
the Company shall have fulfilled its redemption obligation and, in the case
of Article 10A(D)(iii)(b) above, all accumulated and unpaid dividends
payable as provided in Article 10A(C)(ii) hereof, whether or not declared,
on the outstanding Participating Shares shall have been paid in full and
the Company shall have paid dividends in full in cash for four additional
consecutive fiscal quarters thereafter, then the right of the holders of
the Participating Shares to elect such additional Directors pursuant to
this Article 10A(D)(iii) shall immediately cease, the term of office of any
person elected as Director by the holders of the Participating Shares shall
forthwith terminate (and the holders of the Participating Shareholders
shall take all steps necessary to procure the resignation of such
Directors) and the number of Directors comprising the board of Directors
shall be reduced accordingly. At any time after voting power to elect a
Director shall have become vested and be continuing in the holders of
Participating Shares pursuant to this Article 10A(D)(iii) or if a vacancy
shall exist in the office of a Director elected by the holders of
Participating Shares, the Directors may, and upon the written request of
the holders of record of at least 25% of the Participating Shares then
outstanding addressed to the Secretary of the Company shall, call an
extraordinary meeting of the holders of Participating Shares, for the
purpose of electing the Directors which such holders are entitled to elect.
If such meeting shall not be called by the Directors within 20 days after
personal service of written request upon the Secretary of the Company, or
within 20 days after mailing the same by a reputable overnight air courier
service, addressed to the Secretary of the Company at its principal
executive offices, then the holders of at least 25% of the outstanding
Participating Shares may designate in writing one of their number to call
such meeting at the expense of the Company. Such meeting may be called by
the person so designated, or the Directors (as the case may be) upon the
notice required for the Annual General Meeting of shareholders of the
Company and shall be held at the place for holding the Annual General
Meeting of shareholders. Any holder of Participating Shares so designated
shall have, and the Company shall provide, access to the lists of
shareholders to be called pursuant to the provisions hereof. The rights of
the holders of the Participating Shares to elect two additional Directors
pursuant to this Article 10A(D)(iii) shall be in addition to the right to
appoint Directors set forth in Article 10A(H) hereof.
13
(iv) As long as any Participating Shares are outstanding, subject to
applicable law, the Company shall not, without consent of the holders of at
least a majority of the number of Participating Shares at the time
outstanding, voting as a single class, given in person or by proxy, either
in writing or by vote at an extraordinary meeting of that class called for
the purpose:
(a) increase the number of authorized Participating Shares or
issue any additional Participating Shares, other than as contemplated
by the terms of the Participating Shares;
(b) amend or modify the relative rights, powers, preferences or
limitations of the Participating Shares or amend, alter or repeal any
of the provisions of the Company's Memorandum of Association or these
Articles so as to eliminate the Participating Shares or otherwise
affect adversely the relative rights, powers, preferences or
limitations of the holders of Participating Shares; or
(c) other than Participating Shares, create, authorize, issue or
permit to exist any class of Share Capital or series of preferred
shares that ranks as Senior Securities or Parity Securities with
respect to the Participating Shares, or reclassify any class or series
of any Junior Securities into Senior Securities or Parity Securities
or reclassify any class or series of any Parity Securities into Senior
Securities, or authorize any securities exchangeable for, convertible
into or evidencing the right to purchase any such class or series of
Senior Securities or Parity Securities.
(v) The holders of the Participating Shares shall be entitled to
relinquish their rights to the tax gross-up provided for in Article 10A(I)
at an extraordinary meeting of the holders of the Participating Shares duly
convened on 14 days notice. If the holders of the Participating Shares
present in person or by proxy at such meeting resolve by majority vote to
relinquish such tax gross-up rights, the Participating Shares shall
thereafter have no such rights and the Company shall not have the right to
redeem the Participating Shares in accordance with Article 10A(E)(iv).
(E) Redemption
(i) Subject to the provisions of the Statutes and these Articles,
the Company may redeem the Participating Shares and make payment in respect
of the Participating Shares in accordance with the Statutes whether out of
its distributable profits or out of the proceeds of a fresh issue of shares
made for the purposes of such redemption or otherwise. For the purposes of
any redemption under Articles 10A(E)(v) or 10A(E)(vii), the Company shall
use its best efforts to complete a fresh issue of shares (taking into
account then prevailing market conditions and other factors deemed
reasonable by a majority of the Directors) if and to the extent that the
Company does not have sufficient distributable profits to make such
redemption without such a fresh share issue, but save to the extent that
such fresh issue is prohibited by the Company's then existing indebtedness
(whether under its principal bank credit facilities or pursuant to debt
securities issued in
14
an aggregate principal amount in excess of U.S.$50 million in a bona fide
underwritten public offering or bona fide private offering).
(ii) The Company shall not have the right to redeem the
Participating Shares prior to the fourth anniversary of the Issue Date,
except in the limited circumstances set forth in Articles 10A(E)(iv).
(iii) On and after the fourth anniversary of the Issue Date and
prior to the eleventh anniversary of the Issue Date, the Company shall have
the right to redeem the Participating Shares, in whole but not in part, at
a redemption price per share in cash equal to the greater of:
(a) the amount set forth below (expressed as a percentage of
the then effective Liquidation Return), if redeemed during the
twelve-month period beginning on the anniversary of the Issue Date in
the years indicated below:
15
Percentage of
then Effective
Year Liquidation
- ------------------- --------------
Return
--------------
2003 103.250%
2004 102.167%
2005 101.083%
2006 and thereafter 100.000%
and
(b) the aggregate Market Value of the Ordinary Shares into
which such Participating Shares are convertible (in accordance with
Article 10A(F)) on the date of redemption,
in each case plus accumulated and unpaid dividends for the period from and
including the most recent Dividend Payment Date through and including the
date of redemption. Notwithstanding the preceding sentence, the Company
may, at its option (exercisable by resolution of the Directors), elect to
cause the Participating Shares to be converted (in lieu of redemption in
cash at the price referred to in Article 10A(E)(iii)(b)) into such number
of Ordinary Shares as are issuable upon conversion of the relevant
Participating Shares on the date fixed for redemption (the number of
Ordinary Shares issuable on conversion being calculated in accordance with
Article 10A(F)(ii)).
(iv) Prior to the fourth anniversary of the Issue Date, the Company
shall have the right to redeem the Participating Shares, in whole but not
in part, at the same redemption price applicable for redemptions during the
twelve-month period beginning on the anniversary of the Issue Date in 2003
(as set forth in Article 10A(E)(iii)), but only in the event that the
Company has or will become obliged to pay Additional Amounts in respect of
the Participating Shares under the provisions of Article 10A(I) at a rate
of withholding or deduction in excess of 7.5% of the amounts otherwise
payable but for such Article 10A(I) as a result of any change in, or
amendment to, the laws (or any rules, regulations or ruling promulgated
thereunder) of the United Kingdom, which change or amendment becomes
effective after the Issue Date. Prior to the giving of any notice of
redemption of the Participating Shares under this Article 10A(E)(iv), the
Company will deliver to the holders of the Participating Shares (a) a
certificate, executed by the Company's chief financial officer, stating
that the Company is entitled to effect such redemption pursuant to this
Article 10A(E)(iv) and setting forth in reasonable detail a statement of
facts showing that the conditions precedent to the right of the Company so
to redeem have occurred; and (b) a written opinion of independent English
legal advisors, of recognised standing, to the effect that the Company has
or will become obliged to pay such Additional Amounts as a result of such
change or amendment. Notwithstanding the preceding sentences of this
Article 10A(E)(iv), the Company shall not have any rights to redeem the
Participating Shares pursuant to this Article 10A(E)(iv) in the event that
the holders of the Participating Shares vote pursuant to Article 10A(D)(v)
to relinquish their rights to the tax gross-up provided for in Article
10A(I).
16
(v) Subject to the Statutes, on the eleventh anniversary of the
Issue Date (or as soon thereafter as the Company is permitted by the
Statutes), the Company shall redeem all outstanding Participating Shares
or, failing which, the maximum number of outstanding Participating Shares
that can lawfully be so redeemed in accordance with the Statutes on such
date, if any, at a redemption price per share in cash equal to the greater
of (a) the then effective per share Liquidation Return and (b) the
aggregate Market Value of the Ordinary Shares into which such Participating
Shares are convertible (in accordance with Article 10A(F)) on the date of
redemption, in each case plus accumulated and unpaid dividends for the
period from and including the most recent Dividend Payment Date through and
including the date of redemption. Notwithstanding the previous sentence,
the Company may, at its option (exercisable by resolution of the
Directors), elect to cause the Participating Shares to be converted (in
lieu of redemption in cash at the price referred to in Article
10A(E)(v)(b)) into such number of Ordinary Shares as are issuable upon
conversion of the relevant Participating Shares on the date fixed for
redemption (the number of Ordinary Shares issuable on conversion being
calculated in accordance with Article 10A(F)(ii)). In case the Company is
unable to so redeem all outstanding Participating Shares on the eleventh
anniversary of the Issue Date, it shall do so pro rata on a share-by-share
basis among the holders of all such Participating Shares.
(vi) A notice to redeem the Participating Shares pursuant to Article
10A(E)(iii), 10A(E)(iv) or 10A(E)(v) hereof (the "Redemption Notice") shall
be sent by or on behalf of the Company, by a reputable overnight air
courier service, to holders of record of Participating Shares at their
respective addresses as they shall appear on the records of the Company,
not less than 30 days nor more than 60 days prior to the date fixed for
redemption:
(a) notifying such holders of the election of the Company to
redeem such shares, the number of shares to be redeemed, and of the
date fixed for redemption;
(b) stating that the Participating Shares may be converted in
accordance with Article 10A(F) hereof, until the close of business
(London time) on the Business Day prior to the date of redemption by
surrendering to the Company or the registrar (who shall act as
transfer agent for the Participating Shares) the certificate or
certificates for the shares to be converted, accompanied by written
notice specifying the number of shares to be converted, and stating
the name and address of the registrar;
(c) stating the place or places at which the shares called for
redemption shall, upon presentation and surrender of the certificates
evidencing such shares, be redeemed, and the redemption price to be
paid therefor; and
(d) stating that dividends shall cease to accumulate on the
date of redemption unless the Company defaults in the payment of the
redemption price.
(vii) (a) Subject to the provisions of the Statutes, in the event of
any Change of Control, each holder of the Participating Shares shall have
the right, at such holder's
17
option, subject to the terms and conditions hereof, to require the Company
to redeem its Participating Shares, in whole or in part, on a Business Day
that is no earlier than 30 days nor later than 60 days after the occurrence
of such Change of Control (the "Change of Control Repurchase Date") at a
redemption price per Participating Share in cash equal to the greater of
(1) 101% of the then effective per share Liquidation Return and (2) the
aggregate Market Value of the Ordinary Shares into which such Participating
Shares are convertible (in accordance with Article 10A(F)) on the date of
redemption, in each case plus accumulated and unpaid dividends in respect
of each Participating Share being redeemed for the period from the most
recent Dividend Payment Date through and including the date of redemption,
plus the sum of any remaining dividend payments that would have otherwise
been payable on such Participating Shares (assuming that the Stated
Dividend Rate would have been the applicable rate throughout such period)
up to and including the date which is three and one-half years after the
Issue Date (the "Change of Control Repurchase Price"). Notwithstanding the
preceding sentence, the Company may, at its option (exercisable by
resolution of the Directors), elect to cause the Participating Shares to be
converted (in lieu of redemption in cash at the price referred to in
Article 10A(E)(vii)(a)(2)) into such number of Ordinary Shares as are
issuable upon conversion of the relevant Participating Shares on the date
fixed for redemption (the number of Ordinary Shares issuable on conversion
being calculated in accordance with Article 10A(F)(ii)), except that the
Company shall pay in cash such sum of any remaining dividend payments
referred to in the preceding sentence.
(b) In the event of any Change of Control, each holder of
Participating Shares may, alternatively, convert its Participating
Shares, in whole or in part, into Ordinary Shares in accordance with
Article 10A(F) and, if converted after such Change of Control but
prior to or at the close of business on the 60th day after the Change
of Control Notice, subject to the provisions of the Statutes, such
holder shall receive on the date of conversion an additional cash
payment equal to the sum of any remaining dividend payments that would
have otherwise been payable on such converted Participating Shares
(assuming that the Stated Dividend Rate would have been the applicable
rate throughout such period) through and including the date which is
three and one-half years after the Issue Date (the "Additional Change
of Control Payment").
(c) If the Company is unable lawfully to redeem in accordance
with the Statutes all Participating Shares as to which holders have,
at their option, required the Company to redeem in accordance with
Article 10A(E)(vii)(a), then it shall do so pro rata on a
share-by-share basis among all such shares of the relevant holders.
Similarly, if the Company is unable lawfully to pay any Additional
Change of Control Payment set forth in Article 10A(E)(vii)(b), then it
shall do so pro rata on a share-by-share basis among all such shares
of the relevant holders. For purposes of the preceding two sentences,
the redemption of Participating Shares pursuant to Article
10(E)(vii)(a) shall have priority over the payment of any Additional
Change of Control Payment pursuant to Article 10A(E)(vii)(b).
(d) Notwithstanding Articles 10A(E)(vii)(a) or 10A(E)(vii)(b),
to the extent that the Company is prohibited by the Statutes from
paying the Change of
18
Control Repurchase Price set forth in Article 10A(E)(vii)(a) and/or
any Additional Change of Control Payment set forth in Article
10A(E)(vii)(b) to the relevant holder of any Participating Share,
respectively, then the Change of Control Adjustment Amount, if
applicable, shall be added to the Liquidation Return of each such
Participating Share that will not be redeemed or converted in
accordance with such Articles and each such Participating Share not so
redeemed or converted shall remain outstanding after any corresponding
Change of Control Repurchase Date and/or the 60th day after the
corresponding Change of Control Notice, as the case may be.
(e) The Company shall comply with the requirements of Rule
14e-1 under the U.S. Securities Exchange Act of 1934 and any other
securities laws and regulations to the extent such Rule and such laws
and regulations are applicable in connection with the redemption of
Participating Shares as a result of a Change of Control in accordance
with Article 10A(E)(vii)(a).
(f) The Company shall not be required to redeem Participating
Shares in the event of the occurrence of a Change of Control in
accordance with Article 10A(E)(vii)(a) if any other Person acquires
all Participating Shares in respect of which a Change of Control
Repurchase Notice has been validly tendered and not withdrawn in the
manner and at the times required by, and otherwise in compliance with,
Article 10A(E)(ix) and Article 10A(E)(x).
(viii) A notice of a Change of Control (the "Change of Control
Notice") shall be sent by or on behalf of the Company, by a reputable
overnight air courier service, to each holder of Participating Shares of
record at its respective address as it appears on the records of the
Company not more than 10 days after the Change of Control:
(a) describing the transaction that constitutes the Change of
Control;
(b) stating the date by which any Change of Control Repurchase
Notice (as defined below) must be received by the Company or the
registrar from such holder and any Change of Control Repurchase Date;
(c) stating the procedures for withdrawing any Change of
Control Repurchase Notice;
(d) stating that the Participating Shares may be converted in
accordance with Article 10A(F) until the close of business on the
Business Day prior to any Change of Control Repurchase Date by
surrendering to the Company or its registrar the certificate or
certificates for the Participating Shares to be converted, accompanied
by written notice specifying the number of shares to be converted, and
stating the name and address of the transfer agent for the
Participating Shares, if any;
(e) stating any Additional Change of Control Payment;
19
(f) stating the place or places at which the shares called for
redemption shall, upon presentation and surrender of the certificates
evidencing such shares, be redeemed, and any Change of Control
Repurchase Price to be paid therefor; and
(g) stating that dividends shall cease to accumulate on any
Change of Control Repurchase Date unless the Company defaults in
payment of any Change of Control Repurchase Price.
(ix) To exercise its rights, if any, pursuant to Article
10A(E)(vii)(a), a holder of Participating Shares must deliver written
notice (a "Change of Control Repurchase Notice") to the Company, of the
exercise of such right prior to the close of business on the Business Day
immediately prior to the Change of Control Repurchase Date. The Change of
Control Repurchase Notice must state (a) the number of Participating Shares
to be redeemed and (b) that such Participating Shares will be submitted for
redemption by the Company on the Change of Control Repurchase Date.
(x) Any Change of Control Repurchase Notice may be withdrawn by a
holder of Participating Shares by a written notice of withdrawal received
by the Company prior to or at the close of business (London time) on the
Business Day immediately prior to the Change of Control Repurchase Date.
The notice of withdrawal must state the number of Participating Shares as
to which the withdrawal notice relates and the number of Participating
Shares, if any, which remains subject to the original Change of Control
Repurchase Notice.
(xi) Neither failure to mail any Redemption Notice or Change of
Control Notice, as the case may be, nor any defect in any Redemption Notice
or Change of Control Notice, as the case may be, to one or more holders of
Participating Shares shall affect the sufficiency of the proceedings for
redemption as to other holders. Subject to compliance with the provisions
of this Article 10A(E), the Company shall forthwith upon the date fixed for
redemption pay the redemption monies to the appropriate holders of the
Participating Shares.
(xii) On redemption the Company shall cancel the share certificate of
the applicable holder of Participating Shares and, in the case of a
redemption of part of the Participating Shares included in such
certificate, without charge issue a new certificate to such holder for the
balance of Participating Shares not redeemed.
(xiii) To the extent the Company is legally permitted to do so and
save where a majority of the Directors decides bona fide that to do so
would be materially prejudicial to the business of any subsidiary
undertaking, the Company shall use its best efforts to procure the
distribution to the Company by its subsidiary undertaking in respect of
each financial year by way of dividend or otherwise (except by the
reduction of capital or own-share purchases) of sufficient of the profits,
if any, of its subsidiary undertakings to enable the company to redeem the
Participating Shares in accordance with this Article 10A(E).
20
(xiv) If a Redemption Notice or a Change of Control Notice shall have
been given as hereinbefore provided, then each holder of Participating
Shares shall be entitled to all relative rights, powers, preferences and
limitations accorded to holders of the Participating Shares until and
including the date of redemption. Provided that the Company shall have
complied with its obligations pursuant to this Article 10A(E), from and
after the date of redemption, the Participating Shares the subject of such
redemption shall no longer be deemed to be outstanding, and all rights of
the holders of such shares shall cease and terminate, except the right of
the holders of such shares, upon surrender of certificates therefor, to
receive the monies to be paid under this Article 10A(E).
(xv) Any redemption monies unclaimed by the holders of the
Participating Shares entitled thereto for a period of 30 days following the
requisite payment date shall promptly be deposited by the Company in a
third party bank account to be held in trust for such holders.
(xvi) If a holder whose Participating Shares are to be redeemed under
this Article 10A(E) fails to deliver the certificate (or certificates) for
those shares to the Company, the Company may retain the redemption monies
payable to such holder pending delivery of such certificate(s). No person
shall, prior to delivery of such certificate(s), have any claim against the
Company for redemption monies retained under this Article 10A(E)(xvi), and
the Company shall not be liable for interest in respect thereof.
(xvii) The Directors may, pursuant to the authority given by the
adoption of this Article 10A(E), consolidate and sub-divide the share
capital available for issue as a consequence of a redemption of
Participating Shares into Ordinary Shares or any other class of shares into
which the authorized share capital of the Company is then divided, each of
a like nominal amount as the shares of that class then in issue, or into
unclassified shares of the same nominal amount as the Participating Shares.
The Directors may issue shares in anticipation of redemption to the extent
permitted by the Statutes and these Articles.
(F) Conversion Rights
(i) Subject to and upon compliance with the provisions of this
Article 10A(F), the holder of any Participating Shares shall have the
right, at any time and from time to time, at such holder's option, to
convert all or part (having an aggregate Liquidation Return of at least
U.S.$1 million) of such holder's Participating Shares into Ordinary Shares,
and the Company shall have the limited ability in accordance with Article
10A(E)(iii), Article 10A(E)(v) and Article 10A(E)(vii) to elect to cause
the Participating Shares to be converted into Ordinary Shares. If a
Redemption Notice or a Change of Control Repurchase Notice has been given
as hereinbefore provided, such right of conversion shall terminate at the
close of business on the Business Day prior to the date fixed for
redemption.
(ii) Each Participating Share as a whole (and not a fraction
thereof) shall be converted into the number of Ordinary Shares as is equal
to the number determined by
21
dividing (i) the sum of the Liquidation Return on the date of conversion
plus accumulated and unpaid dividends for the period from and including the
most recent Dividend Payment Date up to and including the date of
conversion (in respect of such Participating Share) by (ii) the Conversion
Price in effect on the date of conversion.
(iii) Conversion of such Participating Shares as are due to be
converted ("Relevant Shares") shall be effected in such manner as may be
authorized by applicable law and, without prejudice to the rights of the
holders of the Participating Shares under this Article 10A(F), as the
Directors may in their absolute discretion from time to time determine for
effecting the exercise of the conversion rights attaching to the relevant
Participating Shares (unless the holders of the Participating Shares pass
an extraordinary resolution at a class meeting of the holders of the
Participating Shares electing a particular manner of conversion (which
extraordinary resolution is in effect prior to or at the time of delivery
of the Conversion Notice relating to the Shares to be converted) in which
case conversion shall be effected in such manner, provided that such manner
complies with these Articles and the Statutes). Without limiting the
foregoing, the conversion of the Participating Shares may be effected by
any of the methods set out below (and the Directors shall be authorized for
all relevant purposes pursuant to the authority given by the resolution
adopting these Articles to so convert the Participating Shares):
(a) Conversion may be effected by the redemption of the
Relevant Shares (or any of them) on the relevant conversion date for a
sum equal to the Liquidation Return on the date of conversion plus
accumulated and unpaid dividends for the period from and including the
most recent Dividend Payment Date up to and including the conversion
date, out of distributable profits of the Company. In that event, the
Relevant Shares confer upon the holders thereof the right and
obligation to subscribe for the appropriate number of Ordinary Shares
to which such holder is entitled in accordance with Article
10A(F)(ii), at such aggregate premium, if any, as represents the
amount by which the redemption monies payable in respect of the
Relevant Shares exceeds the nominal amount of such number of Ordinary
Shares. If redemption is to be made in accordance with this Article
10A(F)(iii)(a), the Conversion Notice given by or relating to a holder
of Relevant Shares shall be deemed irrevocably to authorise and
instruct the Directors to apply the redemption monies payable to such
holder in subscribing in such holder's name for such Ordinary Shares
at such premium.
(b) Conversion may be effected by the redemption of the
Relevant Shares (or any of them) on the relevant conversion date, for
a sum equal to the Liquidation Return on the conversion date plus
accumulated and unpaid dividends for the period from and including the
most recent Dividend Payment Date up to and including the conversion
date, out of the proceeds of a fresh issue of shares made for the
purposes of redemption or in any other manner allowed by the Statutes
and these Articles. In that event, the Relevant Shares confer on the
holders thereof the right and obligation to subscribe for the
appropriate number of Ordinary Shares to which that holder is entitled
in accordance with Article 10A(F)(ii), at such aggregate premium, if
any, as represents the amount by
22
which the redemption monies payable in respect of the Relevant Shares
exceeds the nominal amount of such number of Ordinary Shares. If
redemption is to be made out of the proceeds of a fresh issue of
shares made for the purposes of the redemption the Conversion Notice
given by or relating to a holder of Relevant Shares shall be deemed
irrevocably:
(1) to have appointed any Person selected by the Directors
as such holder's agent with authority to apply an amount equal to
the redemption monies in respect of that holder's Relevant Shares
in subscribing and paying on that holder's behalf for the number
of Ordinary Shares to which such holder is entitled in accordance
with Article 10A(F)(ii); and
(2) to have authorized and instructed the Directors to pay
following the allotment of such Ordinary Shares such redemption
monies to such agent who shall be entitled to retain the same for
the agent's own benefit without being accountable therefor to
such holder.
(c) Conversion may be effected by means of consolidation and
sub-division to the extent that such consolidation and sub-division
can lawfully be effected in accordance with the provisions of the
Statutes (or other applicable laws) and these Articles. In such case,
the requisite consolidation and sub-division shall be effected
pursuant to the authority given by the resolution adopting these
Articles as follows. All the Relevant Shares held by any holder or
joint holders in respect of which a Conversion Notice shall have been
delivered shall be consolidated into one share having a nominal value
equal to the aggregate nominal value of the Relevant Shares. Such
consolidated share shall be sub-divided and redesignated into such
number of Ordinary Shares of 1.25p each (or such other nominal value
as may be appropriate as a result of any consolidation or sub-division
of the Ordinary Shares), as is equal to the number of Ordinary Shares
to which such holder is entitled pursuant to such Conversion Notice
(fractional entitlements to an Ordinary Share being disregarded) and
such number of special deferred shares of 0.001p each, if any, as have
an aggregate nominal value equal to the amount, if any, by which the
aggregate nominal value of such Ordinary Shares issued on conversion
is less than the aggregate nominal value of such consolidated share.
Any such special deferred shares will have the rights set out in
Article 10A(F)(iv). The Directors shall be authorized for all relevant
purposes pursuant to the authority given by the resolution adopting
these Articles to make such arrangements for the attribution of value
to reflect the redesignation of a U.S. dollar denominated share as a
sterling denominated share.
(d) Provided it is lawful to do so in accordance with the
Statutes (or other applicable laws) and the Articles, conversion may
be effected by means of the issue of Ordinary Shares to the holders of
the Relevant Shares credited as paid up in full out of distributable
profits or reserves, sums in the Company's share premium account or
otherwise legally available therefor. In such case, the number of
Ordinary Shares to be issued shall be the number of Ordinary Shares to
which such holder is entitled in accordance with Article 10A(F)(ii).
In such
23
event, upon the issue of such Ordinary Shares the Relevant Shares
shall be subdivided and redesignated by the Directors pursuant to the
authority given by the resolution adopting these Articles into special
deferred shares of U.S. 0.001 cents each having the rights set out in
Article 10A(F)(iv) below.
(e) If and to the extent that conversion in accordance with the
above means (or any other means) would result in an illegal reduction
of capital or the issue of shares at a discount then the Company shall
take such action as may be lawful to issue such number of Ordinary
Shares to the holders of the Relevant Shares as may be required by the
foregoing provisions of this Article 10A(F)(iii) including by way of
the issue of bonus shares to the holders of the Relevant Shares or
otherwise (but in no event shall the holders of the Relevant Shares
receive a number of Ordinary Shares exceeding their entitlement under
Article 10A(F)(ii)).
(iv) In the case of a conversion effected pursuant to either Article
10A(F)(iii)(c) or (d) the special deferred shares arising as a result
thereof shall on a return of capital in a winding-up or otherwise entitle
the holder only to the repayment of the amounts paid up on such shares
after repayment of the capital paid up on the Ordinary Shares plus the
payment of an additional (pound)50,000 on each Ordinary Share and shall not
entitle the holder to the payment of any dividend nor to receive notice of
or to attend or vote at any General Meeting of the Company and such
conversion shall be deemed to confer irrevocable authority on the Company
at any time thereafter to appoint any person to execute on behalf of the
holders of such shares an instrument of transfer thereof and/or an
agreement to transfer the same, without making any payment to the holders
thereof, to such person as the Directors may determine as custodian thereof
and to agree to the cancellation and/or purchase by the Company of the same
(in accordance with the provisions of the Statutes) for a price of 1p for
all the special deferred shares without obtaining the sanction of the
holder thereof and pending such transfer and/or agreement to transfer
and/or cancel and/or purchase to retain the certificate for such shares (if
any certificate has been issued in respect thereof).
The Company may at its option (exercisable by resolution of the Directors)
at any time after the creation of any special deferred shares redeem all or
any of the special deferred shares then in issue for 1p for all the special
deferred shares redeemed, at any time upon giving the registered holders of
such share or shares not less than 28 days' previous notice in writing of
its intention so to do, such notice fixing a time and place for redemption
of such shares.
(v) The holder of any Participating Shares may exercise the
conversion right specified in Article 10A(F)(i) by surrendering to the
Company at its registered office or its registrar the certificate or
certificates for the Participating Shares to be converted, accompanied by
written notice specifying the number of shares to be converted with any
evidence the Directors may reasonably require to prove title of the person
exercising the right to convert (the "Conversion Notice"). If the Company
has exercised its limited ability in accordance with Article 10A(E)(iii),
Article 10A(E)(v) or Article 10A(E)(vii) to
24
elect to cause the Participating Shares to be converted into Ordinary
Shares then a Conversion Notice shall be deemed to have been given upon
such exercise.
(vi) Allotments of Ordinary Shares arising from conversion shall be
made within 10 Business Days of the delivery of the Conversion Notice to
the Company. Subject to the provisions of Article 10A(F)(ix)(h) hereof, as
promptly as practicable thereafter, the Company shall issue and deliver to
or upon the written order of each holder of Relevant Shares a new
certificate or certificates for the number of Ordinary Shares to which such
holder is entitled, a new certificate for any unconverted Participating
Shares comprised in any certificate(s) surrendered by such holder, and a
cheque or cash with respect to any fractional interest in an Ordinary
Share, as provided in Article 10A(F)(viii) hereof. In the meantime,
transfers of new Ordinary Shares shall be certified against the register.
(vii) Subject to the provisions of Article 10A(F)(ix)(h) hereof, the
person in whose name the certificate or certificates for Ordinary Shares
are to be issued shall be entered into the Company's register of Members as
a holder of record of such Ordinary Shares immediately prior to the close
of business on the date of conversion. A Conversion Notice may only be
withdrawn by notice by the holder(s) of the Relevant Shares delivered to
the Company not less than two Business Days prior to the date of
conversion.
(viii) No fractions of Ordinary Shares shall be issued upon conversion
of Participating Shares. If more than one Participating Share shall be
surrendered for conversion at any one time by the same holder, the number
of full Ordinary Shares issuable upon conversion thereof shall be computed
on the basis of the aggregate number of Participating Shares so
surrendered. If as a result of conversion holders become entitled to
fractions of an Ordinary Share, the Directors may on behalf of the holders
deal with the fractions as they reasonably deem to be appropriate. Without
limiting the generality of the preceding sentence, the Directors may
aggregate and sell the fractions to a person (including, subject to the
provisions of the Statutes, the Company) for the best price reasonably
obtainable and distribute the net proceeds of sale in due proportions
amongst the holders.
(ix) The Conversion Price shall be subject to adjustment from time
to time as follows, provided that in the event that the holders of
Participating Shares carrying more than 50% of the voting rights of that
class exercise their preemptive rights in a transaction to which Section 89
of the Companies Act 1985 applies, then the adjustment in the Conversion
Price provided for in Article 10A(F)(ix)(a) only shall not be given effect.
(a) Ordinary Shares Issued at Less Than Market Value. If the
Company shall issue any Ordinary Shares, other than Excluded Shares or
Ordinary Shares issued in an Excluded Transaction, without
consideration or for a consideration per share less than the Market
Value immediately prior to such issuance, the Conversion Price in
effect immediately prior to each such issuance shall immediately
(except as provided below) be reduced to the price determined by
multiplying the Conversion Price in effect immediately prior to such
issuance by a fraction (A) the numerator of which is the sum of (1)
the number of Ordinary
25
Shares outstanding immediately prior to such issuance and (2) the
number of Ordinary Shares that the aggregate consideration, if any,
received by the Company upon such issuance, would purchase at such
Market Value and (B) the denominator of which is the total number of
Ordinary Shares outstanding immediately after such issuance.
For the purposes of any adjustment of the Conversion Price pursuant to
this Article 10A(F)(ix)(a), the following provisions shall be
applicable.
(1) Cash. In the case of the issuance of Ordinary Shares for
cash, the amount of the consideration received by the Company shall be
deemed to be the amount of the cash proceeds received by the Company
for such Ordinary Shares before deducting therefrom any discounts,
commissions, taxes or other expenses allowed, paid or incurred by the
Company for any underwriting or otherwise in connection with the
issuance and sale thereof.
(2) Consideration Other Than Cash. In the case of the issuance
of Ordinary Shares (otherwise than upon the conversion of shares of
Share Capital or other securities of the Company) for a consideration
in whole or in part other than cash, including securities acquired in
exchange therefor (other than securities by their terms so
exchangeable), the consideration other than cash shall be deemed to be
either:
(A) the amount determined by an independent valuation
undertaken in accordance with Section 108 of the Companies Act
1985; and
(B) in the absence of such valuation, the Fair Market Value
thereof, irrespective of any accounting treatment.
(3) Options and Convertible Securities. In the case of the
issuance of (x) options, warrants or other rights to purchase or
acquire Ordinary Shares (whether or not at the time exercisable) (but
any adjustment pursuant to this provision shall be made only to the
extent any adjustment shall have not been made pursuant to Article
10A(F)(ix)(d)(4) hereof), (y) securities by their terms convertible
into or exchangeable for Ordinary Shares (whether or not at the time
so convertible or exchangeable) or (z) options, warrants or rights to
purchase such convertible or exchangeable securities (whether or not
at the time exercisable):
(A) the aggregate maximum number of Ordinary Shares
deliverable upon exercise of such options, warrants or other
rights to purchase or acquire Ordinary Shares shall be deemed to
have been issued at the time such options, warrants or rights
were issued and for a consideration equal to the consideration
(determined in the manner provided in subclauses (1) and (2)
above), if any, received by the Company upon the issuance of such
options, warrants or rights plus
26
the minimum purchase price provided in such options, warrants or
rights for the Ordinary Shares covered thereby;
(B) the aggregate maximum number of Ordinary Shares
deliverable upon conversion of or in exchange for any such
convertible or exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or acquire such
convertible or exchangeable securities and the subsequent
conversion or exchange thereof, shall be deemed to have been
issued at the time such convertible or exchangeable securities
were issued or such options, warrants or rights were issued and
for a consideration equal to the consideration, if any, received
by the Company for any such convertible or exchangeable
securities or options, warrants or rights (excluding any cash
received on account of accumulated interest or accumulated
dividends), plus the additional consideration (determined in the
manner provided in subclauses (1) and (2) above), if any, to be
received by the Company upon the conversion or exchange of such
securities, or upon the exercise of any related options, warrants
or rights to purchase or acquire such convertible or exchangeable
securities and the subsequent conversion or exchange thereof;
(C) on any change in the number of Ordinary Shares
deliverable upon exercise of any such options, warrants or rights
or conversion or exchange of such convertible or exchangeable
securities or any change in the consideration to be received by
the Company upon such exercise, conversion or exchange (but
excluding any change resulting solely from the operation of the
anti-dilution provisions thereof if, and only if, such
anti-dilution provisions would not require an adjustment to the
exercise price or conversion price thereof in the event of any
change to the Conversion Price pursuant to the provisions of this
Article 10A(F)), the Conversion Price as then in effect shall
forthwith be readjusted to such Conversion Price as would have
been obtained had an adjustment been made upon the issuance of
such options, warrants or rights not exercised prior to such
change, or of such convertible or exchangeable securities not
converted or exchanged prior to such change, upon the basis of
such change;
(D) on the expiration or cancellation of any such options,
warrants or rights that are unexercised, or the cancellation or
redemption of, or the termination of the right to convert or
exchange such convertible or exchangeable securities, if the
Conversion Price shall have been adjusted upon the issuance
thereof, the Conversion Price shall forthwith be readjusted to
such Conversion Price as would have been obtained had an
adjustment been made upon the issuance of such options, warrants,
rights or such convertible or exchangeable securities on the
basis of the issuance of only the number of Ordinary Shares
actually issued upon the exercise of such options, warrants or
rights, or upon the conversion or exchange of such convertible or
exchangeable securities; and
27
(E) if the Conversion Price shall have been adjusted upon
the issuance of any such options, warrants, rights or convertible
or exchangeable securities no further adjustment of the
Conversion Price shall be made for the actual issuance of
Ordinary Shares upon the exercise, conversion or exchange
thereof.
(b) Excluded Shares. All Excluded Shares shall be deemed to be
issued and outstanding for all purposes of computations under Article
10A(F)(ix)(a).
(c) Share Dividends, Subdivisions, Reclassifications or
Combinations. If the Company shall (1) declare a dividend or make a
distribution on its Ordinary Shares in additional Ordinary Shares
which is not paid or made on an equal and ratable basis to all holders
of Participating Shares, (2) subdivide, split or reclassify (by
merger, consolidation or otherwise) the outstanding Ordinary Shares
into a greater number of shares, (3) combine or reclassify (by merger,
consolidation or otherwise) the outstanding Ordinary Shares into a
smaller number of shares or (4) issue any Ordinary Shares in a
reclassification (by merger, consolidation or otherwise), the
Conversion Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision,
combination, reclassification or issuance shall be proportionately
adjusted so that the holder of any Participating Shares surrendered
for conversion after such date shall be entitled to receive the number
of Ordinary Shares which such holder would have owned or been entitled
to receive had such Participating Shares been converted immediately
prior to such date. Successive adjustments in the Conversion Price
shall be made whenever any event specified above shall occur.
(d) Other Distributions. In case the Company shall fix a record
date for the making of a distribution to all holders of Ordinary
Shares which is not paid or made on an equal and ratable basis to all
holders of Participating Shares, (1) of shares of any class other than
its Ordinary Shares or (2) of evidence of indebtedness of the Company
or any subsidiary or (3) of assets or other property, including,
without limitation, securities issued by subsidiaries or others
(excluding regular cash dividends, and dividends or distributions
referred to in Article 10A(F)(ix)(c) above), or (4) of options,
warrants or other rights, in each such case the Conversion Price in
effect immediately prior thereto shall be reduced immediately
thereafter to the price determined by dividing (A) an amount equal to
the difference resulting from (1) the number of Ordinary Shares
outstanding on such record date multiplied by the Conversion Price per
Ordinary Share on such record date less (2) the Fair Market Value of
such shares or evidences of indebtedness or assets or rights or
warrants to be so distributed, by (B) the number of Ordinary Shares
outstanding on such record date. Such adjustment shall be made
successively whenever such a record date is fixed. In the event that
such distribution is not so made, the Conversion Price then in effect
shall be readjusted, effective as of the date when the Directors
determine not to distribute such shares, evidences of indebtedness,
assets, property, options, rights or warrants, as the case may be, to
the Conversion Price which would then be in effect if such record date
had not been fixed.
28
(e) Consolidation, Merger, Sale, Lease or Conveyance. In case
of any consolidation, amalgamation, or merger of the Company with or
into another corporation or entity, or in case of any sale, lease or
conveyance to another corporation or entity of the assets of the
Company as an entirety or substantially as an entirety, each
Participating Share shall after the date of such consolidation,
amalgamation, merger, sale, lease or conveyance be convertible into
the number of shares of stock or other securities or property
(including cash) to which the Ordinary Shares issuable (immediately
prior to the time of such consolidation, merger, sale, lease or
conveyance) upon conversion of each such Participating Shares would
have been entitled upon such consolidation, amalgamation, merger,
sale, lease or conveyance, and in any such case, if necessary, the
provisions set forth herein with respect to the rights and interests
thereafter of the holders of the Participating Shares shall be
appropriately adjusted so as to be applicable, as nearly as may
reasonably be possible, to any shares of stock or other securities or
property thereafter deliverable on the conversion of the Participating
Shares.
(f) Rounding of Calculations. All calculations under this
Article 10A(F)(ix) shall be made to the nearest U.S. cent or to the
nearest one ten thousandth of a share, as the case may be.
(g) Adjustments for American Depositary Shares. All
computations and calculations under this Article 10A(F)(ix) shall, at
the time of determination, give effect to the then applicable ratio of
Ordinary Shares to American depositary shares representing such
Ordinary Shares at the time of determination and shall be adjusted
accordingly (it being recognized that such ratio is four Ordinary
Shares per American depositary share on the Issue Date). Without
limiting the generality of the preceding sentence, the computations
and calculations relating to Market Value in Article 10A(F)(ix)(a)
shall be based on the Market Value for American depositary shares
representing Ordinary Shares of the Company as adjusted by then
applicable ratio of Ordinary Shares to American depositary shares (it
being recognized that Market Value initially is to be divided by 4 to
reflect the ratio of four Ordinary Shares per American depositary
share on the Issue Date).
(h) Timing of Issuance of Additional Ordinary Shares Upon
Certain Adjustments. In any case in which the provisions of this
Article 10A(F)(ix) shall require that an adjustment shall become
effective immediately after a record date for an event, the Company
may defer until the occurrence of such event (1) issuing to the holder
of any Participating Shares converted after such record date and
before the occurrence of such event the additional Ordinary Shares
issuable upon such conversion by reason of the adjustment required by
such event over and above the Ordinary Shares issuable upon such
conversion before giving effect to such adjustment and (2) paying to
such holder any amount of cash in lieu of any fractional Ordinary
Shares, provided, that the Company, upon request, shall deliver to
such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional Ordinary Shares, and such
cash, upon the occurrence of the event requiring such adjustment.
29
(x) Whenever the Conversion Price shall be adjusted, the Company
shall forthwith file, at the office of the registrar, at the registered
office of the Company, and at the principal office of the Company in the
United States, a statement showing in detail the facts requiring such
adjustment and the Conversion Price that shall be in effect after such
adjustment, and the Company shall also cause a copy of such statement to be
sent by reputable overnight air courier service, to each holder of
Participating Shares at its address appearing on the Company's records.
(xi) In the event the Directors have, or the Company has, agreed or
otherwise formally determined to take any action of the type described in
clause (a) (but only if the action of the type described in clause (a)
would result in an adjustment in the Conversion Price), (c), (d) or (e) of
Article 10A(F)(ix) hereof, the Company shall give notice to each holder of
Participating Shares, in the manner set forth in Article 10A(F)(ix) hereof,
which notice shall specify the record date, if any, with respect to any
such action and the approximate date on which such action is to take place.
Such notice shall also set forth such facts with respect thereto as shall
be reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the
Conversion Price and the number, kind or class of shares or other
securities or property which shall be deliverable upon conversion of
Participating Shares. In the case of any action which would require the
fixing of a record date, such notice shall be given at least ten days prior
to the date so fixed, and in case of all other action, such notice shall be
given at least ten days prior to the taking of such proposed action.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any such action.
(xii) The Company shall pay all U.K. documentary, stamp, transfer or
similar taxes, plus any fees of the depositary for American depositary
shares, attributable to the issuance or delivery of Ordinary Shares or
American depositary shares representing Ordinary Shares upon conversion of
any Participating Shares, provided that the Company shall not be required
to pay any taxes which may be payable in respect of any transfer involved
in the issuance or delivery of any certificate for such shares in a name
other than that of the holder of the Participating Shares in respect of
which such shares are being issued.
(xiii) The Company shall at all times so long as any Participating
Shares remain outstanding, have sufficient authorized Share Capital
available for allotment and issue (i) to permit the issuance of additional
Participating Shares as dividends or by way of bonus issue on the
Participating Shares and (ii) to permit the conversion of all Participating
Shares in issue from time to time into Ordinary Shares in accordance with
these Articles.
(xiv) If any Ordinary Shares to be issued for the purpose of
conversion of Participating Shares require registration with or approval of
any governmental authority under any U.S. federal or state, English or
other non-U.S. law before such shares may be validly issued or delivered
upon conversion, then the Company will in good faith and as expeditiously
as possible endeavour to secure such registration or approval, as the case
may be. If, and so long as, any Ordinary Shares into which the
Participating Shares are then convertible are listed or quoted on any U.S.,
U.K. or other securities exchange or
30
market, the Company will, if permitted by the rules of such securities
exchange or market, list and keep listed or quoted on such securities
exchange or market, upon official notice of issuance, all such shares
issuable upon conversion.
(xv) All Ordinary Shares that may be issued upon conversion of the
Participating Shares will upon issuance by the Company be duly and validly
issued, fully paid and non-assessable, not issued in violation of any
preemptive rights arising under law or contract, and free from all taxes,
liens and charges with respect to the issuance thereof, and the Company
shall take no action which will cause a contrary result (including without
limitation, any action which would cause the Conversion Price to be less
than the nominal value, if any, of the Ordinary Shares).
(xvi) Notwithstanding the foregoing provisions of this Article 10A(F)
(and subject to the terms of the relevant American depositary receipt
agreement), if the holder of any Participating Shares so specifies in the
Conversion Notice, the Company shall cause to be delivered to the holder of
the said Participating Shares, upon conversion of the specified
Participating Shares, American depositary receipts evidencing the number of
American depositary shares representing the Ordinary Shares into which such
Participating Shares have been converted. Any American depositary shares
that may be issued upon such conversion shall upon issuance be duly and
validly issued and entitled to the benefits specified therein and in the
deposit agreement relating to such American depositary shares, and the
Company shall take no action which will cause a contrary result. For the
purposes of this Article 10A(F) (including without limitation, Articles
10A(F)(vii), 10A(F)(ix) and 10A(F)(xv)) all references to Ordinary Shares
shall be deemed, to the fullest extent possible, to apply to the American
depositary shares representing such Ordinary Shares and all references to
share certificates to the American depositary receipts representing such
American depositary shares.
(G) Liquidation Return
(i) In the event of the liquidation, winding-up or dissolution of
the Company, whether voluntary or involuntary, the holders of Participating
Shares then outstanding, after payment or provision for payment of the
debts and other liabilities of the Company, and before any distribution to
holders of any Junior Securities of the Company, shall be entitled to be
paid out of the assets of the Company available for distribution to its
shareholders an amount per Participating Share in cash equal to the greater
of (a) the then effective Liquidation Return per share plus accumulated and
unpaid dividends from and including the most recent Dividend Payment Date
through and including the date of liquidation, winding-up or dissolution
and (b) the amount that would be payable to the holders of the
Participating Shares if the Participating Shares had been converted into
Ordinary Shares immediately prior to such liquidation, winding-up or
dissolution. In the event the assets of the Company available for
distribution to the holders of the Participating Shares upon any
dissolution, winding-up or liquidation of the Company shall be insufficient
to pay in full the liquidation payments payable to the holders of
outstanding Participating Shares and of all other Parity Securities, the
holders of Participating Shares and all other Parity Securities shall share
in such distribution of assets on a pro rata basis in proportion to the
amount which would be payable on such
31
distribution if the amounts to which the holders of outstanding
Participating Shares and the holders of outstanding shares of such Parity
Securities were paid in full.
(ii) For the purposes of this Article 10A(G), none of the following
transactions shall be deemed to be a voluntary or involuntary liquidation,
dissolution or winding-up of the Company (provided that the same shall be
effected by way of a bona fide transaction on arm's length terms):
(a) the sale, lease, transfer or exchange of all or
substantially all of the assets of the Company; or
(b) the consolidation, amalgamation, or merger of the Company
with or into one or more other corporations or other Persons (whether
or not the Company is the corporation surviving such consolidation or
merger).
(H) Special Right to Appoint Directors
(i) Beginning on the Issue Date and continuing as long as the
holders of the Participating Shares own Voting Shares of the Company and
debt securities or Share Capital convertible into or exercisable for Voting
Shares of the Company where all such Voting Shares represent at least 10%
of the Company's total voting power, such holders shall be entitled
pursuant to this Article 10A(H) to appoint two Directors to serve on the
board of Directors of the Company. In the event that such holders own, on
such a basis, Voting Shares representing less than 10%, but more than 5%,
of the Company's total voting power, such holders shall be entitled
pursuant to this Article 10A(H) to designate one Director.
(ii) In the event that Cypress and/or Affiliates of Cypress shall
transfer some or all of their Participating Shares to another Person (other
than an Affiliate of Cypress or its Affiliates) without the written consent
of the Directors of the Company (which consent shall not be unreasonably
withheld), and as a result of such transfer Cypress and Affiliates of
Cypress hold in the aggregate less than 50.01% of the total number of
Participating Shares outstanding at that time, then the holders of the
Participating Shares shall, notwithstanding Article 10A(H)(i), be entitled
thereafter to appoint only a maximum of one Director (it being recognised
that Cypress and its Affiliates and any other holders of the Participating
Shares shall not be subject to any restriction hereunder on their ability
to transfer all or part of their Participating Shares to any other Person
and that this Article 10A(H)(ii) relates solely to the power to appoint
Directors).
(iii) Each committee of the Directors shall include at least one
Director designated by such holders as provided above; provided, that this
requirement shall not apply with respect to the appointment of any
particular designee to a committee in the event that the rules or
regulations of any securities exchange or market on which the Ordinary
Shares or American depositary shares representing such Ordinary Shares are
then listed, quoted or traded (including, in the case of the London Stock
Exchange, the Combined Code or any successor thereto), or applicable law,
prohibits the appointment of such Director to such committee.
32
(iv) The Company and the Directors shall take all actions necessary
to effect such designation to the board of Directors (including, without
limitation, increasing the size of the board of Directors and/or removing
Directors) and to each committee thereof.
(v) The Directors to be designated by the holders of the
Participating Shares shall be elected by such holders by majority vote at a
class meeting of the holders of the Participating Shares to be held
immediately prior to any annual meeting of shareholders or extraordinary
meeting held in place thereof, or by majority vote at a duly convened
extraordinary meeting of the holders of the Participating Shares.
(vi) The special right to appoint Directors set forth in this
Article 10A(H) shall be in addition to the rights of the holders of the
Participating Shares to exercise voting rights pursuant to Article 10A(D)
hereof (including, without limitation, with respect to the election of
Directors of the Company generally).
(vii) If any Director appointed by the holders of the Participating
Shares pursuant to this Article 10A(H) resigns, retires or is removed by
the Company while the holders of the Participating Shares continue to have
the right to appoint such Director, then, notwithstanding anything
contained in these Articles, such holders shall be entitled to appoint a
replacement Director in the same manner as appointment of the predecessor
Directors other than when such Director retires pursuant to Article 106 and
is re-elected as a Director with effect from the end of the Annual General
Meeting at which he retires.
(I) Tax Gross-Up
Subject as provided in Article 10A(D)(v), all payments by the Company in
respect of the Participating Shares shall be made without withholding or
deduction for or on account of any present or future taxes, duties, assessments
or other governmental charges of whatsoever nature imposed or levied by or on
behalf of the United Kingdom or any political subdivision or authority thereof
or therein having power to tax, unless the Company is required by law to
withhold such taxes, duties, assessments or other governmental charges. In such
event, the Company shall make the required withholding or deduction, make
payment of the amount so withheld or deducted to the appropriate government
authority and pay such additional amounts ("Additional Amounts") as may be
necessary to ensure that the net amounts received by the holders of the
Participating Shares (taking into account any tax credits received by such
holders from the United Kingdom) after such withholding or deduction shall equal
the respective amounts of dividends and other amounts which would have been
received in respect of the Participating Shares in the absence of such
withholding or deduction; provided, however, that no such Additional Amounts
shall be payable:
(i) to any holder who is subject to such taxes, duties, assessments
or other governmental charges in respect of the Participating Shares by
reason of such holder being a resident of the United Kingdom and otherwise
than solely by the holding of such Participating Shares or by the receipt
of dividends and other amounts in respect thereof; or
33
(ii) to the extent that the taxes, duties, assessments or other
governmental charges would not have been imposed but for the failure of
such holder to comply with any certification, identification or other
reporting requirements concerning the nationality, residence, identity or
connection with the United Kingdom of such holder if (a) such compliance is
required or imposed by law as a precondition to exemption from all or a
part of such tax, duty, assessment or other governmental charge and (b) at
least 30 days prior to the first Dividend Payment Date with respect to
which the Company will apply this clause (ii), the Company shall have
notified all holders of the Participating Shares that such holders will be
required to comply with such requirement.
(J) Definitions
For the purposes of this Article 10A only, the following definitions
shall apply:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, for
so long as such Person remains so associated to the specified Person. The
term "control" shall have the meaning for such term as used in Rule 12b-2
under the U.S. Securities Exchange Act of 1934.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or London are authorized or
required by law to close.
"Change of Control" means the occurrence at any time of any of
the following:
(i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the U.S. Securities Exchange Act of 1934)
(excluding for purposes of this clause (i), Cypress and any of its
Affiliates, individually and in the aggregate), in a single
transaction or through a series of related transactions, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the U.S.
Securities Exchange Act of 1934, except that a person shall be deemed
to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
29.9% of the total Voting Shares of the Company;
(ii) the Company consolidates or merges with or into another
corporation or petitions the court for any scheme of compromise or
arrangement within the meaning of section 425 of the Companies Act
1985 or conveys, transfers or leases all or substantially all of its
assets to any Person, or any corporation consolidates or mergers with
or into the Company, in any such event pursuant to a transaction in
which the issued Voting Shares of the Company are changed into or
exchanged for cash, securities not issued in violation of Article
10A(D)(iv) or other property, other than (a) any such transaction in
which (1) the issued Voting Shares of the Company are changed into or
exchanged for Voting Shares of the surviving corporation or its parent
corporation and (2) the holders of the Voting Shares of
34
the Company immediately prior to such transaction own, directly or
indirectly, not less than 50.01% of the Voting Shares of the surviving
corporation or its parent corporation immediately after such
transaction or (b) any such transaction with, into or to any Affiliate
of Cypress;
(iii) during any period of 24 consecutive months, individuals who
at the beginning of such period constituted the board of Directors of
the Company (together with any new Directors whose election by such
board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of at least 66 2/3%
(sixty-six and two thirds percent) of the Directors then still in
office who were either Directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Directors of the
Company then in office (but any additional Directors elected by the
holders of the Participating Shares pursuant to Article 10A(D)(iii)
shall be excluded from the calculations for the purposes of this
definition); or
(iv) the Company is voluntarily or involuntarily wound up or
dissolved or adopts a plan of liquidation, other than a voluntary
winding up pursuant to which the whole of the Company's business is
proposed to be transferred or sold to another company and the issued
Voting Shares of the Company are changed into or exchanged for Voting
Shares of that other company or its parent company, such Voting Shares
having rights equal to or greater than the rights attached to the
Voting Shares in the Company.
"Change of Control Adjustment Amount" means an amount (if a positive
number only) equal to (i) the difference between (a) 101% of the then
effective Liquidation Return per share and (b) the aggregate Market Value
of the Ordinary Shares into which each Participating Share was convertible
on the date immediately preceding first public announcement of the
transaction giving rise to the Change of Control, multiplied by (ii) a
fraction the numerator of which is the deficiency in monies lawfully
available for redemption and the denominator of which is the total amount
of monies necessary to pay the redemption price in full upon a Change of
Control as set forth in Article 10A(E)(vii)(a), in the case of this
paragraph (ii) assuming that all holders of Participating Shares determined
to require the Company to redeem their Participating Shares in accordance
with Article 10A(E)(vii)(a).
"Conversion Price" means an amount in U.S. dollars per Ordinary Share,
determined by the Directors on the Issue Date, being not more than US$3.125
per Ordinary Share, subject to adjustment in accordance with the provisions
of Article 10A(F) hereof.
"Cypress" means The Cypress Group LLC or any successor entity.
"Excluded Shares" means Ordinary Shares issued or issuable by the
Company or American depositary shares representing such Ordinary Shares (i)
upon conversion of the Participating Shares, (ii) upon conversion of the
outstanding U.S.$200 million aggregate
35
principal amount of the Company's 6.25% Convertible Subordinated Notes due
2002, or (iii) pursuant to bona fide stock option or other employee or
officer benefit plans, provided, that such shares are issued at an exercise
price or for consideration equal to or greater than the Fair Market Value
thereof on the date of grant or award (and, in each case, including any
American depositary shares representing such Ordinary Shares).
"Excluded Transaction" means (i) an underwritten public offering of
Ordinary Shares or American depositary shares representing Ordinary Shares
or (ii) the issuance of Ordinary Shares or American depositary shares
representing Ordinary Shares solely in exchange for assets or all of the
shares of another Person (whether by merger, exchange or otherwise) in a
transaction in which an independent internationally recognized investment
banking firm has advised the Company that the transaction is fair and
reasonable to the Company from a financial point of view.
"Fair Market Value" means, with respect to any securities, the Market
Value thereof and of any consideration other than cash or securities shall
mean the amount which a willing buyer would pay to a willing seller in an
arm's length transaction as determined by an independent internationally
recognized investment banking or appraisal firm experienced in the
valuation of such securities or property selected in good faith by the
Directors.
"in cash" shall mean in U.S. dollars, unless otherwise specified.
"Liquidation Return" means, on any date, the sum of U.S.$1,000 per
Participating Share, plus (i) accumulated and unpaid dividends added to the
Liquidation Return in respect of such Participating Share in accordance
with Article 10A(C)(v) hereof and (ii) the amount, if any, added to the
Liquidation Return in respect of such Participating Share in accordance
with Article 10A(E)(vii)(d) hereof.
"Market Value," with respect to any security, means the average of the
daily closing prices of such security for the 20 trading day period ending
on the relevant date of determination. The closing price for each day shall
be the last reported sales price regular way or, in case no such reported
sale takes place on such day, the average of the reported closing bid and
asked prices regular way, in either case on the New York Stock Exchange,
or, if such security is not listed or admitted to trading on the New York
Stock Exchange, on the American Stock Exchange, or, if such security is not
listed or admitted to trading on the American Stock Exchange, the average
of the closing bid and asked prices of such security in the
over-the-counter market as reported on the NASDAQ National Market System or
the NASDAQ SmallCap Market of the National Association of Securities
Dealers, Inc. or if such security is not so quoted, the average of the
closing bid and asked price of such security in the over-the-counter market
as furnished by any U.S. nationally recognized New York Stock Exchange
member firm selected by the Company for such purpose (it being recognized
that on the Issue Date American depositary shares representing Ordinary
Shares of the Company are quoted on the NASDAQ National Market System). If
such security is not so listed, quoted or traded, the closing price shall
be the last reported closing price for such security on the London Stock
Exchange or, if not so listed, any other non-U.S. securities exchange or
market on
36
which such security is listed, quoted or traded (translated to U.S. dollars
using the then prevailing exchange rate on such date of determination). If
such security is not so listed, quoted or traded on any non-U.S. securities
exchange or market, the closing price shall mean the amount which a willing
buyer would pay to a willing seller in an arm's length transaction as
determined by an independent internationally recognized investment banking
or appraisal firm experienced in the valuation of such securities or
property selected in good faith by the board of directors of the issuer of
such security. Notwithstanding the foregoing (and subject to Article
10A(F)(ix)(g)), the Market Value of the Ordinary Shares shall be determined
by reference to closing prices for the American depositary shares
representing such Ordinary Shares so long as such American depositary
shares are listed, quoted or traded on the New York Stock Exchange, the
American Stock Exchange, the NASDAQ National Market System or the NASDAQ
SmallCap Market (adjusted to take into account the then prevailing ratio of
Ordinary Shares per one American depositary share).
"Ordinary Share Equivalent Rate" means, with respect to any Dividend
Period, the quotient of (a) the product of (i) all dividends declared
during such Dividend Period with respect to one Ordinary Share, (ii) the
Applicable Period Adjustment Factor and (iii) the number of Ordinary Shares
issuable upon conversion of one Participating Share on the last day of such
Dividend Period, divided by (b) the Liquidation Return of one Participating
Share on the first day of such Dividend Period. For purposes of the
preceding sentence, "Applicable Period Adjustment Factor" means two (if
such dividends are declared and paid on a semi-annual basis), four (if such
dividends are declared and paid on a quarterly basis) or such other number
as reflects the fiscal periods as to which such dividends are declared and
paid, as the case may be.
"Ordinary Shares" means the Ordinary Shares referred to in Article 3,
and shall also include (i) Share Capital of the Company of any other class
(regardless of how denominated) issued to the holders of Ordinary Shares
upon any reclassification thereof in which the Ordinary Shares are
converted into a new class of Share Capital and (ii) shares of common stock
of any successor or acquiring corporation received by or distributed to the
holders of Ordinary Shares.
"Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Share Capital" means any and all shares, interests, participations,
rights in or other equivalents (however designated and whether voting or
non-voting), and any and all rights (other than any evidence of
indebtedness), warrants or options exchangeable for or convertible into
such shares, interests, participations, rights in or other equivalents,
including, to the fullest extent applicable, American Depository Receipts
or similar instruments representing any such share capital.
"Stated Dividend Rate" means 6.50% per annum; provided, that if at any
time the Company shall be in default of its obligation to redeem any shares
of the Participating Shares, the then effective Stated Dividend Rate shall
increase by 2.00% per annum.
37
"Voting Shares" means shares of the class or classes of Share Capital
(including, in the case of the Company, the Ordinary Shares and the
Participating Shares) pursuant to which the holders thereof have the
general voting power to vote at meetings of shareholders (irrespective of
whether or not at the time shares of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
(K) In the event of any conflict between the provisions of this Article 10A and
any other provision of these Articles, this Article 10A shall prevail except
where such construction would result in manifest error.
10B (A) The Directors may refuse to register an allotment of shares
(whether fully paid or not) in favour of more than four persons jointly. If the
Directors refuse to register an allotment they shall within two months after the
date on which the letter of allotment was lodged with the Company send to the
allottee notice of the refusal.
(B) Except as required by law or pursuant to the provisions of these
Articles, no person shall be recognised by the Company as holding any share upon
any trust, and (except only as by these Articles or by law otherwise provided or
under an order of a court of competent jurisdiction) the Company shall not be
bound by or be compelled in any way to recognise (even when having notice
thereof) any equitable, contingent, future or partial interest in any shares or
any interest in any fractional part of a share or any other rights in respect of
any share except an absolute right to the entirety thereof in the registered
holder.
SHARE CERTIFICATES
11. Every share certificate shall be issued in accordance with Article 126
and shall specify the number and class and the distinguishing number (if any) of
the shares to which it relates and the amount paid up thereon. No certificate
shall be issued relating to shares of more than one class.
12. Other than in relation to any shares which are held or to be held in
uncertificated form (in respect of which no share certificate shall be issued),
every person (other than a recognised clearing house or a nominee of a
recognised clearing house or of a recognised investment exchange in respect of
whom the Company is not by law required to complete and have ready for delivery
a certificate) whose name is entered as a Member on the Register shall be
entitled without payment to receive within two months after allotment or
lodgement of transfer (or within such other period as the conditions of issue
shall provide) one certificate for all the shares registered in his name or, in
the case of shares of more than one class being registered in his name, a
separate certificate for each class of shares so registered, and where a Member
transfers part of the shares of any class registered in his name (or requests in
the manner required by the Uncertificated Securities Regulations that part only
of the shares comprised in a share certificate be converted from certificated to
uncertificated form) he shall be entitled without payment to one certificate for
the balance of shares of that class retained by him. If a Member shall require
additional certificates he shall pay for each additional certificate such
reasonable sum (if any) as the Directors may determine. Where any shares are
converted from uncertificated to certificated form, the Company shall issue a
share certificate for those shares
38
(subject to the foregoing provisions of this Article 12) within two months after
the date on which the Company received the relevant Operator-instruction.
13. In respect of shares of one class held jointly by more than one person
the Company shall not be bound to issue more than one certificate, and delivery
of a certificate for such shares to the person first named on the Register in
respect of such shares shall be sufficient delivery to all such holders.
14. If any certificate in respect of shares held in certificated form be
worn out or defaced then upon delivery thereof to the Directors they may order
the same to be cancelled, and may issue a new certificate in lieu thereof; and
if any certificate be lost or destroyed, then upon proof thereof to the
satisfaction of the Directors and on such indemnity as the Directors deem
adequate being given, a new certificate in lieu thereof shall be given to the
party entitled to such lost or destroyed certificate.
15. Every certificate issued under the last preceding Article shall be
issued without payment, but there shall be paid to the Company any exceptional
out-of-pocket expenses of the Company in connection with the request as the
Directors think fit and a sum equal to the costs incurred by the Company of any
such indemnity as is referred to in that Article.
15A. Conversion of shares from certificated form into uncertificated form
and vice versa shall be effected in accordance with the Uncertificated
Securities Regulations and, subject thereto, in such manner as the Directors may
determine.
VARIATION OF RIGHTS
16. If at any time the share capital is divided into different classes of
shares, the rights attached to any class or any of such rights may, subject to
the provisions of the Statutes, whether or not the Company is being or is to be
wound up, be modified, abrogated or varied (i) in such manner (if any) as may be
provided by such rights or (ii) in the absence of any such provision either with
the consent in writing of the holders of three-fourths of the issued shares of
that class, or with the sanction of an Extraordinary Resolution passed at a
separate General Meeting of the holders of the shares of the class.
17. To every such separate General Meeting the provisions of Sections 369,
370, 376 and 377 of the Companies Act 1985 and the provisions of these Articles
relating to General Meetings shall, mutatis mutandis, so far as applicable
apply, subject to the following provisions, namely:
(a) the necessary quorum at any such meeting other then an adjourned
meeting shall be two persons holding or representing by proxy at least
one-third in nominal value the issued shares of the class in question and
at an adjourned meeting two persons holding shares of the class in question
or his proxy; and
(b) any holder of shares of the class in question present in person
or by proxy may demand a poll.
18. The rights attached to any class of shares shall, unless otherwise
expressly provided by the terms of issue of the shares of that class or by the
terms upon which such shares are for
39
the time being held, be deemed to be varied or abrogated by the reduction of the
capital paid up on such shares or by the allotment of further shares ranking in
priority thereto for payment of a dividend or repayment of capital but be deemed
not to be modified, abrogated or varied by the creation or issue of further
shares ranking pari passu in all respects (save as to the date from which such
new shares shall rank for dividend) with or subsequent to those already issued.
CALLS ON SHARES
19. The Directors may, subject to the terms of allotment thereof, from
time to time make such calls upon the Members as they think fit in respect of
any moneys unpaid on their shares (whether on account of the nominal value of
the shares or by way of premium) and each Member shall (subject to receiving at
least 21 days' notice specifying the time or times and place of payment) pay to
the Company at the time or times and place so specified the amount called on his
shares. A call may be revoked or postponed, in whole or in part, as the
Directors may determine. A person upon whom a call is made shall remain liable
for calls made upon him notwithstanding the subsequent transfer of shares in
respect of which the call was made.
20. A call shall be deemed to have been made at the time when the
resolution of the Directors authorising the call was passed and may be required
to be paid by installments.
21. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
22. If a sum payable in respect of any call or instrument is not paid on
or before the day appointed for payment thereof, the holder for the time being
of the share in respect of which the call shall have been made, or the
instrument be due, shall pay interest on the sum at such reasonable rate as the
Directors' shall determine, or failing such determination at the rate of 14% per
annum from the day appointed for the payment thereof until the actual payment
thereof, and all expenses that may have been incurred by the Company by reason
of such non-payment; but the Directors may, if they shall think fit, waive the
payment of such interest and expenses or any part thereof.
23. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of the
share or by way of premium, shall for the purposes of these Articles be deemed
to be a call duly made and payable on the date on which by the terms of issue
the same becomes payable, and in case of non-payment all the relevant provisions
of these Articles as to payment of interest and expenses forfeiture or otherwise
shall apply as if such sum had become payable by virtue of a call duly made and
notified.
24. The Directors may, on the issue of shares, make arrangements for a
difference between the holders of such shares in the amounts of calls to be paid
and in the times of payment of such calls.
25. The Directors may, if they think fit, receive from any Member willing
to advance the same all or any part of the moneys, whether on account of the
nominal value of the shares or by way of premium, uncalled and unpaid upon any
shares held by him; and upon all or any of the moneys so paid in advance the
Directors may (until the same would, but for such advance,
40
become presently payable) pay interest at such rate not exceeding (unless the
Company in General Meeting shall otherwise direct) 10 per cent. per annum, as
may be agreed upon between the Directors and the Member paying such moneys in
advance.
FORFEITURE AND LIEN
26. If any Member fails to pay any call or instalment in full on or before
the day appointed for payment thereof, the Directors may, at any time thereafter
during such time as any part of the call or instalment remains unpaid, serve a
notice on him requiring him to pay so much of the call or instalment as is
unpaid together with any interest which may have accrued and any expenses
incurred by the Company by reason of such non-payment.
27. The notice shall name a further day (not earlier than the expiration
of seven days from the date of service of the notice) on or before which and the
place where such call or instalment and such interest and expenses as aforesaid
are to be paid. The notice shall also state that in the event of non-payment at
or before the time and at the place appointed, the shares in respect of which
such call or instalment is payable will be liable to be forfeited.
28. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which such notice has been given may at any time
thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the Directors to that effect. Such forfeiture shall
extend to all dividends declared in respect of the shares so forfeited and not
actually paid before such forfeiture. Forfeiture shall be deemed to occur at the
time of the passing of the said resolution of the Directors. The Directors may
accept a surrender of any share liable to be forfeited hereunder upon such terms
and conditions as may be agreed.
29. When any share has been forfeited notice of the forfeiture shall be
served upon the person who was before forfeiture the holder of the share, or the
person entitled to the share by transmission, and an entry of the forfeiture or
surrender, with the date thereof, shall forthwith be made in the Register, but
no forfeiture shall be invalidated by any failure to give such notice or make
such entry as aforesaid.
30. A share so forfeited or surrendered shall be deemed to be the
property of the Company, and may be sold, re-allotted or otherwise disposed of
in such manner, either subject to or discharged from all calls made or
installments due prior to the forfeiture or surrender, as the Directors think
fit: Provided that the Company shall not exercise any voting rights in respect
of such share and any such share not disposed of in accordance with the
foregoing within a period of three years from the date of its forfeiture or
surrender shall thereupon be cancelled in accordance with the provisions of the
Statutes. For the purpose of giving effect to any such sale or other disposition
the Directors may authorize some person to transfer the share so sold or
otherwise disposed of to the purchaser thereof or other person becoming entitled
thereto. Where for the purposes of its disposal a forfeited share held in
uncertificated form is to be transferred to any person, the Directors may
exercise any of the Company's powers under Article 3C in respect of the
forfeited share.
41
31. The Directors may, at any time before any share so forfeited or
surrendered shall have been cancelled or sold, re-allotted or otherwise disposed
of, annul the forfeiture or surrender upon such terms as they think fit.
32. Any person whose shares have been forfeited or surrendered shall
cease to be a Member in respect of those shares, and shall, if the shares are in
certificated form, surrender the certificate for the forfeited shares to the
Company. The person shall remain liable to pay to the Company all moneys which,
at the date of the forfeiture or surrender, were presently payable by him to the
Company in respect of the shares, together with interest thereon at such rate,
not exceeding 15 per cent. per annum, as the Directors may determine from the
time of forfeiture or surrender until the time of payment, but his liability
shall cease if and when the Company shall have received payment in full of all
such moneys in respect of the shares, together with interest as aforesaid. The
Directors may enforce payment without any allowance for the value of the shares
at the time of forfeiture or surrender or for any consideration received on
their disposal or waive payment in whole or in part.
33. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys (whether presently payable or not)
called or payable at a fixed time in respect of such share; but the Directors
may at any time waive any lien which has arisen and may declare any share to be
wholly or in part exempt from the provisions of this Article. The Company's
lien, if any, on a share shall extend to all dividends payable thereon.
34. The Company may sell, in such manner as the Directors think fit, any
share on which the Company has a lien, but no sale shall be made unless a sum in
respect of which the lien exists is presently payable, nor until the expiration
of seven days after a notice in writing, (i) stating, and demanding payment of,
the sum presently payable, and (ii) giving notice of intention to sell in
default of such payment, has been given to the registered holder for the time
being of the share, or the person entitled thereto by reason of his death or
bankruptcy.
35. The net proceeds of such sale, after payment of the costs thereof,
shall be received by the Company and applied in or towards satisfaction of such
part of the amount in respect of which the lien exists as is presently payable.
The residue, if any, shall (subject to a like lien for sums not presently
payable as existed upon the shares before the sale) be paid to the person
entitled to the shares at the date of sale. For giving effect to any such sale
the Directors may authorise some person to transfer the shares sold to the
purchaser.
36. A statutory declaration in writing that the declarant is a Director
or the Secretary of the Company and that a share has been duly forfeited or
surrendered or sold to satisfy a lien of the Company on a date stated in the
declaration shall be conclusive evidence of the facts stated therein against all
persons claiming to be entitled to the share. Such declaration and the receipt
of the Company for the consideration (if any) given for the share on the sale,
re-allotment or disposal thereof together, in respect of shares held in
certificated form, with the share certificate delivered to a purchaser or
allottee thereof shall (subject to the execution of a transfer if the same be
required) constitute a good title to the share and the person to whom the share
is sold, re-allotted or disposed of shall be registered as the holder of the
share. If the share is in uncertificated form, the Directors may exercise any of
the Company's powers under Article 3C to effect the sale of the share to, or in
accordance with the directions of, the person to whom the share is sold. The
person to whom the
42
share is sold shall not be bound to see to the application of the purchase money
(if any) nor shall his title to the share be affected by any irregularity or
invalidity in the proceedings in reference to the forfeiture, surrender, sale,
re-allotment or disposal of the share.
TRANSFER OF SHARES
37. The instrument of transfer of any share in the Company which is in
certificated form shall be signed by or on behalf of the transferor (and, in the
case of a share which is not fully paid, shall be signed by or on behalf of the
transferee) and the transferor shall be deemed to remain the holder of the share
until the name of the transferee is entered in the Register in respect thereof.
37A. Title to a share which is in uncertificated form shall be transferred
by means of the relevant system in accordance with the Uncertificated Securities
Regulations and, accordingly, no provision of these Articles which requires a
written instrument of transfer and the lodging of a share certificate with the
Company shall apply to such a transfer. The Directors may make such arrangements
as they think fit in relation to evidencing of title to and transfer of shares
in uncertificated form subject to the Uncertificated Securities Regulations.
38. All transfers of shares in certificated form shall be effected by
instrument in writing in any usual or common form or any other form which the
Directors may approve. Every transfer of uncertificated shares must be effected
by use of a relevant system in accordance with the provisions of the
Uncertificated Securities Regulations.
39. Subject to Article 76 and the requirements of the UK Listing Authority
and the London Stock Exchange, the Directors may, in their absolute discretion
and without assigning any reason therefor, refuse to register any transfer of
any share in certificated form which is not a fully paid share. If that share
has been admitted to the Official List of the UK Listing Authority, the
Directors may not refuse to register the transfer if this would prevent dealings
in the share from taking place on an open and proper basis. The Directors may
likewise refuse to register any transfer of a share, whether fully paid or not,
in favour of more than four persons jointly.
40. The Directors may decline to recognise any instrument of transfer of a
share in certificated form unless:
(a) the instrument of transfer is left duly stamped at the Office, or
at such other place as the Directors may from time to time determine, to be
registered, accompanied by the certificate(s) of the shares to which it
relates, and such other evidence as the Directors may reasonably require to
show the right of the transferor to make the transfer (and, if the
instrument of transfer is executed by some other person on his behalf, the
authority of that person so to do); and
(b) the instrument of transfer is in respect of only one class of
share
provided that, in the case of a transfer by a recognised clearing house or a
nominee of a recognised clearing house or of a recognised investment exchange,
the lodgement of share
43
certificates will only be necessary if and to the extent that certificates have
been issued in respect of the shares in question.
41. If the Directors refuse to register a transfer they shall within two
months after the date on which the transfer was lodged with the Company or on
which the relevant Operator-instruction was received by the Company send to the
transferee notice of the refusal and, in the case of shares in certificated form
(except in the case of fraud), return to him the instrument of transfer. All
instruments of transfer which are registered may be retained by the Company.
42. No fee shall be charged by the Company on the registration of any
instrument of transfer, Operator-instruction, probate, letters of
administration, certificate of death or marriage, power of attorney, stop notice
or other document relating to or affecting the title to any shares or otherwise
for making any entry in the Register affecting the title to any shares.
43. The registration of transfers of shares or of transfers of any class
of shares may be suspended at such times and for such periods (not exceeding 30
days in any year) as the Directors may determine, except that the Directors may
not suspend the registration of transfers of any participating security without
the consent of the Operator of the relevant system.
44. The Company shall be entitled to destroy:
(i) any instrument of transfer which has been registered, at any
time after the expiration of six years from the date of registration
thereof;
(ii) any dividend mandate or any variation or cancellation thereof or
may any notification of change of address, at any time after the expiration
of two years from the date of recording thereof;
(iii) any share certificate which has been cancelled, at any time
after the expiration of one year from the date of such cancellation; and
(iv) any other document on the basis of which entry in the Register
is made, at any time after the expiration of six years from the date an
entry in the Register is first made in respect thereof;
and it shall conclusively be presumed in favour of the Company that every entry
in the Register purporting to have been made on the basis of an instrument of
transfer or other document so destroyed was duly and properly made, that every
instrument of transfer so destroyed was a valid and effective instrument duly
and properly registered, that every share certificate so destroyed was a valid
certificate duly and properly cancelled and that every other document destroyed
hereunder was a valid and effective document in accordance with the recorded
particulars thereof in the books or records of the Company; Provided always
that:
(a) the provisions aforesaid shall apply only to the destruction of a
document in good faith and without express notice to the Company that the
preservation of such document was relevant to any claim (regardless of the
parties thereto);
44
(b) nothing contained in this Article shall be construed as imposing
upon the Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any case where the conditions of
proviso (a) above are not fulfilled; and
(c) references in this Article to the destruction of any document
include references to its disposal in any manner.
TRANSMISSION OF SHARES
45. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole or only surviving holder, shall be the only persons
recognised by the Company as having any title to his interest in the shares; but
nothing herein contained shall release the estate of a deceased Member from any
liability in respect of any share which had been held by him (whether solely or
jointly with other persons).
46. Any person becoming entitled to a share in consequence of the death or
bankruptcy of a Member may, upon such evidence being produced as may from time
to time properly be required by the Directors and subject as hereinafter
provided, elect either to be registered himself as holder of the share or to
have some person nominated by him registered as the transferee thereof, but the
Directors shall, in either case, have the same right to decline or suspend
registration as they would have had in the case of a transfer of the share by
that Member before his death or bankruptcy, as the case may be.
47. If the person so becoming entitled shall elect to be registered
himself and the share is in certificated form, he shall deliver or send to the
Company a notice in writing signed by him stating that he so elects. If he shall
elect to have another person registered and the share is in certificated form,
he shall testify his election by executing to that person a transfer of the
share. If he shall elect to have another person registered and the share is in
certificated form, he shall take any action the Directors may require
(including, without limitation, the execution of any document and the giving of
any instruction by means of a relevant system) to enable himself or that person
to be registered as the holder of the share. All the limitations, restrictions
and provisions of these Articles relating to the right to transfer and the
registration of transfers of shares shall be applicable to any such notice or
transfer as aforesaid as if the death or bankruptcy of the Member had not
occurred and the notice or transfer were a transfer signed by that Member.
48. Save as otherwise provided by or in accordance with these Articles, a
person becoming entitled to a share by reason of the death or bankruptcy of the
holder shall, upon supplying to the Company such evidence as the Directors may
reasonably require to show his title to the share, be entitled to the same
dividends and other advantages to which he would be entitled if he were the
registered holder of the share, except that he shall not, before being
registered as a Member in respect of the share, be entitled in respect of it to
exercise any right conferred by membership in relation to meetings of the
Company: Provided always that the Directors may at any time give notice
requiring any such person to elect either to be registered himself or to
transfer the share, and if the notice is not complied with within 90 days the
45
Directors may thereafter withhold payment of all dividends, bonuses or other
moneys payable in respect of the share until the requirements of the notice have
been complied with.
CONVERSION OF SHARES INTO STOCK
49. The Company may by Ordinary Resolution convert any of its fully paid
up shares into stock of the same class as the shares so converted, and reconvert
such stock into fully paid up shares of the same class and of any denomination.
50. The several holders of stock may transfer the same, or any part
thereof, in the same manner, and subject to the same regulations, as and subject
to which the shares from which the stock arose might previously to conversion
have been transferred, or as near thereto as circumstances admit; and the
Directors may from time to time fix the minimum amount of stock transferable but
so that such minimum shall not exceed the nominal amount of the shares from
which the stock arose.
51. The several holders of such stock shall, according to the amount of
stock held by them and the class thereof, have the same rights, privileges and
advantages as regards dividends, voting at meetings of the Company and other
matters as if they held the shares from which the stock arose, but no such
privilege or advantage (except participation in the dividend and profits of the
Company and in the assets on winding up) shall be conferred by an amount of
stock which would not, if existing in shares, have conferred that privilege or
advantage.
52. Such of the provisions of these Articles as are applicable to fully
paid up shares shall apply to stock and the words "share" and "shareholder"
therein shall include "stock" and "stockholder".
ALTERATION OF CAPITAL
53. The Company may from time to time by Ordinary Resolution increase its
share capital by such sum, to be divided into shares of such amount, as the
resolution shall prescribe. All new shares shall be subject to the provisions of
these Articles with reference to allotment, payment of calls, forfeiture, lien,
transfer and transmission and otherwise.
54. The Company may by Ordinary Resolution:
(a) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(b) sub-divide its existing shares, or any of them, into shares of
smaller amount than is fixed by the Memorandum of Association, provided
that;
(i) in the sub-division the proportion between the amount paid
and the amount, if any, unpaid on each reduced share shall be the same
as it was in the case of the share from which the reduced share is
derived; and
(ii) the resolution whereby any share is sub-divided may
determine that as between the resulting shares one or more of such
shares may be given any
46
preference or advantage as regards dividend, capital, voting or
otherwise over the others or any other of such shares;
(c) cancel any shares which, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the shares so
cancelled.
55. Subject to any direction by the Company in General Meeting, whenever
as the result of any consolidation and division or sub-division of shares
Members of the Company are entitled to any issued shares of the Company in
fractions, the Directors may deal with such fractions as they shall determine
and in particular may sell the shares to which Members are so entitled in
fractions to any person for the best price reasonably obtainable and pay and
distribute to and amongst the Members entitled to such shares in due proportions
the net proceeds of the sale thereof. Where the shares to be sold are held in
certificated form, the Directors may authorize some person to execute an
instrument of transfer of the shares to, or in accordance with the directions
of, the purchaser. Where the shares to be sold are held in uncertificated form,
the Directors may do all acts and things that they consider necessary or
expedient to effect the transfer of the shares to, or in accordance with the
directions of, the purchaser. The purchaser shall not be bound to see to the
application of the purchase money nor shall his title to the shares be affected
by any irregularity or invalidity in the proceedings in reference to the sale.
56. Subject to any consent required by law, the Company may by Special
Resolution reduce its share capital, any capital redemption reserve and any
share premium account in any manner and with, and subject to, any incident
authorized, and consent required, by law.
GENERAL MEETINGS
57. The Company shall in each year hold a General Meeting as its Annual
General Meeting in addition to any other meetings in that year, and not more
than fifteen months shall elapse between the date of one Annual General Meeting
of the Company and that of the next. The Annual General Meeting shall be held at
such time and place as the Directors shall appoint.
58. All General Meetings other than Annual General Meetings shall be
called Extraordinary General Meetings.
59. The Directors may, whenever they think fit, convene an Extraordinary
General Meeting, and Extraordinary General Meetings shall also be convened on
such requisition, or, in default, may be convened by such requisitionists, as
provided by the Statutes. If at any time there are not within the United Kingdom
sufficient Directors capable of acting to form a quorum the Directors in the
United Kingdom capable of acting may convene an Extraordinary General Meeting in
the same manner as nearly as possible as that in which meetings may be convened
by the Directors.
NOTICE OF GENERAL MEETING
60. An Annual General Meeting and a meeting called for the passing of a
Special Resolution shall be called by not less than twenty-one days' notice in
writing, and a meeting of the Company other than an Annual General Meeting or a
meeting for the passing of a Special
47
Resolution shall be called by not less than fourteen days' notice in writing.
The notice shall be exclusive of the day on which it is served or deemed to be
served and of the day for which it is given, and shall specify the place, the
day and the hour of meeting and, in case of special business, the general nature
of that business. It shall be given, in manner hereinafter mentioned or in such
other manner, if any, as may be prescribed by the Company in General Meeting, to
such persons as are, under these Articles, entitled to receive such notices from
the Company and shall comply with the provisions of the Statutes as to informing
Members of their right to appoint proxies. A notice calling an Annual General
Meeting shall specify the meeting as such and a notice convening a meeting to
pass an Extraordinary Resolution or a Special Resolution as the case may be
shall specify the intention to propose the resolution as such.
60A. Where the notice of meeting is published on a web-site in accordance
with Article 146B, it shall continue to be published in the same place in that
web-site from the date of the notification given under Article 146B until the
conclusion of the meeting to which the notice relates.
61. A meeting of the Company shall, notwithstanding that it is called by
shorter notice than that specified in the last preceding Article, be deemed to
have been duly called if it is so agreed:
(a) in the case of a meeting called as the Annual General Meeting, by
all the Members entitled to attend and vote thereat; and
(b) in the case of any other meeting, by a majority in number of the
Members having a right to attend and vote at the meeting, being a majority
together holding not less than ninety-five per cent. in nominal value of
the shares giving that right.
62. The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive notice
shall not invalidate the proceedings at that meeting. In cases where instruments
of proxy are sent out with notices, the accidental omission to send such
instrument of proxy to or non-receipt of such instrument of proxy by any person
entitled to receive notice shall not invalidate the proceedings at the meeting.
PROCEEDINGS AT GENERAL MEETINGS
63. All business shall be deemed special that is transacted at an
Extraordinary General Meeting, and also all that is transacted at an Annual
General Meeting, with the exception of:
(a) declaring dividends:
(b) receiving and/or adopting the accounts, balance sheets, reports
of the Directors and Auditors and any other documents required by law to be
attached or annexed to the balance sheets;
(c) appointing or re-appointing Directors to fill vacancies arising
at the meeting on retirement whether by rotation or otherwise;
48
(d) re-appointing the retiring Auditors (unless they were last
appointed otherwise than by the Company in General Meeting);
(e) fixing of the remuneration of the Auditors or determining the
manner in which such remuneration is to be fixed.
64. No business shall be transacted at any General Meeting unless a quorum
of Members is present at the time when the meeting proceeds to business; save as
herein otherwise provided, three Members present in person or by proxy shall be
a quorum. The appointment of a Chairman in accordance with the provisions of
these Articles shall not be treated as part of the business of the meeting. If
within thirty minutes from the time appointed for the meeting a quorum be not
present, the meeting, if convened by or upon the requisition of Members, shall
be dissolved. In any other case it shall stand adjourned to such other day and
such time and place as may have been specified for the purpose in the notice
convening the meeting or (if not so specified) as the Chairman of the meeting
may determine and in the latter case not less than seven days' notice of the
adjourned meeting shall be given in like manner as in the case of the original
meeting. If at such adjourned meeting a quorum be not present within fifteen
minutes from the time appointed therefor, the Member or Members present in
person or by proxy and entitled to vote shall be a quorum and shall have power
to decide upon all matters which could properly have been disposed of at the
meeting from which the adjournment took place.
65. The Chairman of the Board of Directors, failing whom the Deputy
Chairman, shall preside as Chairman at every General Meeting of the Company. If
there be no such Chairman or Deputy Chairman, or if at any General Meeting
neither shall be present within ten minutes after the time appointed for holding
the meeting and willing to act as Chairman, the Directors present shall select
one of their number to be Chairman; or if no Director be present and willing to
take the chair the Members present and entitled to vote shall choose one of
their number to be Chairman of the meeting.
66. The Chairman of the meeting may, with the consent of any meeting at
which a quorum is present (and shall if so directed by the meeting), adjourn the
meeting from time to time and from place to place. In addition, the Chairman may
at any time, without the consent of the meeting, adjourn the meeting to another
time or place if it appears to him that:
(a) the number of persons wishing to attend cannot be conveniently
accommodated in the place(s) appointed for the meeting; or
(b) the unruly conduct of persons attending the meeting prevents, or
is likely to prevent, the orderly continuation of the meeting; or
(c) an adjournment is otherwise necessary so that the business of the
meeting can be properly conducted.
No business shall be transacted at any adjourned meeting other than the business
left unfinished at the meeting from which the adjournment took place. When a
meeting is adjourned for fourteen days or more, not less than seven clear days'
notice in writing of the adjourned meeting shall be given specifying the day,
the place and the time of the meeting as in the case of an original meeting, but
it shall not be necessary to specify in such notice the nature of the business
49
to be transacted at the adjourned meeting. Save as aforesaid it shall not be
necessary to give any notice of an adjournment.
67. If at any General Meeting an amendment shall be proposed to any
resolution under consideration but shall in good faith be ruled out of order by
the Chairman of the meeting, the proceedings on the substantive resolution shall
not be invalidated by any error in such ruling. In the case of a resolution duly
proposed as a Special or Extraordinary Resolution no amendment thereto (other
than an amendment to correct a patent error) may in any event be considered or
voted upon and in the case of a resolution proposed as an Ordinary Resolution no
amendment thereto (other than an amendment to correct a patent error) may be
considered or voted upon unless at least forty-eight hours prior to the time
appointed for holding the meeting or adjourned meeting at which such resolution
is to be proposed notice in writing of the terms of the amendment and intention
to move the same has been lodged at the Office.
67A. If it appears to the Chairman that the meeting place specified in the
notice convening the meeting is inadequate to accommodate all Members entitled
and wishing to attend, the meeting is duly constituted and its proceedings valid
if the Chairman is satisfied that adequate facilities are available to ensure
that a Member who is unable to be accommodated is able to (i) participate in the
business for which the meeting has been convened; (ii) hear and see all persons
present who speak (whether by the use of microphones, loud-speakers,
audio-visual communications equipment or otherwise), whether in the meeting
place or elsewhere; and (iii) be heard and seen by all other persons present in
the same way.
67B. The Directors and, at any meeting, the Chairman may make such
arrangements and impose any requirement or restriction as they or he considers
appropriate to promote the safety and orderly conduct of the business of a
meeting as laid down in the notice of the meeting (including, without
limitation, requiring evidence of identity to be produced by persons attending
the meeting, arranging for persons attending to be searched and restricting
items to be taken into the meeting place). The Chairman may refuse entry to a
meeting to (or arrange the removal from a meeting of) a person who refuses to
comply with such arrangements. The Chairman's decision on matters of procedure
or arising incidentally from the business of the meeting shall be final, as
shall his determination as to whether any matter is of such a nature.
67C. If, after the giving of notice of a general meeting but before the
meeting is held, or after the adjournment of a general meeting but before the
adjourned meeting is held (whether or not notice of the adjourned meeting is
required), the Directors decide that it is impracticable or unreasonable for a
reason beyond their control to hold the meeting at the declared placed and/or
time, they may change the place and/or postpone the time at which the meeting is
to be held. If such a decision is made, the Directors may then change the place
and/or postpone the time again if they decide that it is reasonable to do so. In
either case:
(a) no new notice of the meeting need be given, but the Directors
shall, if practicable, advertise the date, time and place of the meeting in
at least two newspapers having a national circulation and shall make
arrangements for notices of the change of place and/or postponement to
appear at the original place and/or at the original time; and
50
(b) notwithstanding Article 80, an instrument of proxy in relation to
the meeting may be deposited at any time not less than 48 hours before any
new time appointed for holding the meeting.
68. At any General Meeting a resolution put to the vote of the meeting
shall be decided on a show of hands unless a poll is (before or on the
declaration of the result of the show of hands) demanded:
(a) by the Chairman of the meeting; or
(b) by at least three Members present in person or by proxy and
entitled to vote; or
(c) by any Member or Members present in person or by proxy and
representing not less than one-tenth of the total voting rights of all the
Members having the right to vote at the meeting; or
(d) by a Member or Members holding shares in the Company conferring a
right to vote at the meeting being shares on which an aggregate sum has
been paid up equal to not less than one-tenth of the total sum paid up on
all shares conferring that right.
Unless a poll be so demanded a declaration by the Chairman of the meeting that a
resolution has on a show of hands been carried or carried unanimously, or by a
particular majority, or lost and an entry to that effect in the book containing
the minutes of the proceedings of the Company shall be conclusive evidence of
the fact without proof of the number or proportion of the votes recorded in
favour of or against such resolution.
69. Except as provided in Article 71, if a poll is duly demanded it shall
be taken in such manner (including the use of ballot or voting papers or
tickets) as the Chairman of the meeting directs, and the result of the poll
shall be deemed to be the resolution of the meeting at which the poll was
demanded. The Chairman of the meeting may (and if so directed by the meeting
shall) appoint scrutineers and may adjourn the meeting to some place and time
fixed by him for the purpose of declaring the result of a poll.
70. In the case of an equality of votes, whether on a show of hands or on
a poll, the Chairman of the meeting at which the show of hands takes place or at
which the poll is demanded, shall be entitled to a second or casting vote.
71. A poll demanded on the election of a Chairman of the meeting or on the
question of an adjournment shall be taken forthwith. A poll demanded on any
other question shall be taken either immediately or at such subsequent time (not
being more than thirty days after the date of the meeting or adjourned meeting
at which the poll is demanded) and place as the Chairman of the meeting may
direct. No notice need be given of a poll not taken immediately. Any business
other than that upon which a poll has been demanded may be proceeded with
pending the taking of the poll. The demand for a poll may be withdrawn, but only
with the consent of the Chairman of the meeting, at any time before the
conclusion of the meeting; but, if a demand is withdrawn, the Chairman of the
meeting or other Members entitled may himself or themselves demand a poll.
51
VOTES OF MEMBERS
72. Subject to any rights or restrictions for the time being attached to
any class or classes of shares, on a show of hands every Member present in
person shall have one vote, and on a poll every Member shall have one vote for
each share of which he is the holder.
73. In the case of joint holders of a share the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders; and for this purpose
seniority shall be determined by the order in which the names stand in the
Register in respect of the share.
74. A Member in respect of whom an order has been made by any court having
jurisdiction (in the United Kingdom or elsewhere) in matters concerning mental
disorder may vote, whether on a show of hands or on a poll, by his receiver
curator bonis or other person authorized in that behalf appointed by that court,
and such receiver curator bonis or other person may, on a poll, vote by proxy:
Provided that such evidence as the Directors may require of the authority of the
person claiming to vote shall have been deposited at the Office not less than
forty-eight hours before the time appointed for holding the meeting or adjourned
meeting or for taking the poll at which it is desired to vote.
75. No Member shall, unless the Directors otherwise determine, be
entitled, in respect of any share in the capital of the Company held by him, to
be present or to vote on any question, either in person or by proxy, at any
General Meeting or meeting of the holders of any class of shares of the Company,
or upon any poll, or to be reckoned in a quorum, or to exercise any other right
or privilege conferred by membership in relation to General Meetings of the
Company or meetings of the holders of any class of shares of the Company if any
call or other sum presently payable by him to the Company in respect of such
share remains unpaid.
76. (A) If any Member, or any other person appearing to be interested in
shares held by such Member, has been duly served with a notice under Section 212
of the Companies Act 1985 (as amended by the Companies Act 1989) and is in
default for the prescribed period in supplying to the Company the information
thereby required, then, subject to the requirements of the UK Listing Authority
and the London Stock Exchange, the Directors may in their absolute discretion at
any time thereafter by a notice (a "direction notice") to such Member direct
that, in respect of the shares in relation to which the default occurred (the
"default shares" which expression shall include any further shares which are
issued in respect of such shares), the Member shall not be entitled to be
present or to vote either personally or by proxy at a General Meeting of the
Company or a meeting of the holders of any class of shares of the Company or to
exercise any other right conferred by membership in relation to General Meetings
of the Company or meetings of the holders of any class of shares of the Company.
(B) Where the default shares represent at least 0.25 per cent. of the
issued shares of that class, then the direction notice may additionally direct:
(i) that any dividend or part thereof or other money which would
otherwise be payable in respect of the default shares shall be retained by
the Company without any liability to pay interest thereon when such money
is finally paid to the Member; and/or
52
(ii) that no transfer of any of the shares held by such Member shall
be registered unless:
(a) the Member is not himself in default as regards supplying
the information required and the transfer is of part only of the
Member's holding which, when presented for registration, is
accompanied by a certificate by the Member in a form satisfactory to
the Directors to the effect that after due and careful inquiry the
Member is satisfied that none of the shares the subject of the
transfer are default shares; or
(b) the transfer is an approved transfer; or
(c) registration of the transfer is required by the
Uncertificated Securities Regulations.
(C) The Company shall send to each other person appearing to be interested
in the shares the subject of any direction notice a copy of the notice, but the
failure or omission by the Company to do so shall not invalidate such notice.
(D) The sanctions under this Article 76 shall cease to apply seven days
after the earlier of:
(i) receipt by the Company of notice of an approved transfer,
but only in relation to the shares transferred; and
(ii) receipt by the Company, in a form satisfactory to the
Directors, of all the information required by the direction notice.
(E) For the purposes of this Article:
(i) a person shall be treated as appearing to be interested in any
shares if the Member holding such shares has given to the Company a
notification under the said Section 212 which either (a) names such person
as being so interested or (b) fails to establish the identities of those
interested in the shares and (after taking into account the said
notification and any other relevant Section 212 notification) the Company
knows or has reasonable cause to believe that the person in question is or
may be interested in the shares;
(ii) the prescribed period is 28 days from the date of service of
the notice under the said Section 212 except where the default shares
represent at least 0.25 per cent. of the issued shares of that class in
which case the prescribed period is 14 days from such date;
(iii) a transfer of shares is an approved transfer if:
(a) it is a transfer of shares to an offeror by way or in
pursuance of acceptance of a takeover offer for a company (as defined
in Section 428(1) of the Companies Act 1985); or
53
(b) the Directors are satisfied that the transfer is made
pursuant to a sale of the whole of the beneficial ownership of the
shares to a party unconnected with the transferring Member and/or with
any other person appearing to be interested in such shares; or
(c) the transfer results from a sale made through a recognized
investment exchange or any stock exchange outside the United Kingdom
on which the Company's shares are normally traded; and
(iv) The Company may exercise any of its powers under Article 3C in
respect of any default share that is held in uncertificated form.
77. No objection shall be raised to the qualification of any voter or as
to whether any votes have been counted which ought not to have been counted or
which might have been rejected, or as to whether any votes have not been counted
which ought to have been counted, except at the meeting or adjourned meeting at
which the vote objected to is given or tendered or at which the vote which might
have been counted is not counted, or (in the case of a poll) on or within 24
hours of the declaration of the result of the poll, and every vote not
disallowed at such meeting shall be valid for all purposes. Any such objection
made in due time shall be referred to the Chairman of the meeting, whose
decision shall be final and conclusive.
78. On a poll votes may be given personally or by proxy and a Member
entitled to more than one vote need not, if he votes, use all his votes or cast
all the votes he uses in the same way.
79A. Subject to the provisions of Article 79B, the instrument appointing a
proxy shall be in writing in any usual or common form, or any other form which
the Directors may approve, under the hand of the appointor or of his attorney
duly authorized in writing, or if the appointor is a corporation, either under
seal, or under the hand of an officer or attorney duly authorized. The Directors
may, but shall not be bound to, require evidence of the authority of any such
attorney or officer. The signature on such instrument need not be witnessed.
79B. Subject to the Statutes, the Directors may accept the appointment of a
proxy received in an electronic communication on such terms and subject to such
conditions as they consider fit. The appointment of a proxy received in an
electronic communication is not subject to the requirements of Article 79A. The
Directors may require the production of any evidence it considers necessary to
determine the validity of such an appointment.
79C. A proxy need not be a Member of the Company. A Member may appoint more
than one proxy to attend on the same occasion. Deposit of an instrument of proxy
shall not preclude a Member from attending and voting in person at the meeting
or any adjournment thereof.
80. The form of appointment of a proxy, and the powers of attorney or
other authority, if any, under which it is signed, or a notarially certified
copy or a copy certified in accordance with the Powers of Attorney Act 1971 of
that power or authority shall be: (i) in the case of an instrument in writing,
deposited at the Office or at such other place (if any) within the United
Kingdom as is specified for that purpose in or by way of note to the notice
convening the meeting, not less than forty-eight hours before the time for
holding the meeting or adjourned
54
meeting, at which the person named in the instrument proposes to vote; (ii) in
the case of an appointment of a proxy contained in an electronic communication,
where an address has been specified for the purpose of receiving electronic
communications: (a) in the notice convening the meeting, or (b) in any form of
appointment of a proxy sent out by the Company in relation to the meeting, or
(c) in any invitation contained in an electronic communication to appoint a
proxy issued by the Company in relation to the meeting, received at such address
not less than 48 hours before the time for holding the meeting at which the
person named in the form of appointment of proxy proposes to vote; or (iii) in
the case of a poll taken otherwise that at or on the same day as the meeting or
adjourned meeting, not less than twenty-four hours before the time appointed for
the taking of the poll at which it is to be used. An appointment of proxy not
delivered or received in accordance with this Article 80 is invalid.
81. An instrument appointing a proxy shall, unless the contrary is stated
thereon, be valid as well for any adjournment of the meeting to which it
relates. An instrument of proxy may relate to more than one meeting (including
any adjournment thereof) and having once been so delivered for the purpose of
any meeting shall not require to be delivered in relation to any subsequent
meeting to which it relates. No instrument of proxy shall be valid after the
expiration of twelve months from the date of its execution except at an
adjourned meeting or on a poll demanded at a meeting or adjourned meeting in
cases where the meeting was originally held within twelve months from that date.
82. The instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll.
83. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal
or revocation of the proxy or of the authority under which the proxy was
executed, or the transfer of the share in respect of which the proxy is given,
provided that no intimation in writing of such death, insanity, revocation or
transfer shall have been received by the Company at the Office or such other
place (if any) as is specified for depositing the instrument of proxy or, where
the appointment of proxy was contained in an electronic communication, at the
address at which the form of appointment was received, before the commencement
of the meeting or adjourned meeting or the holding of a poll subsequently
thereto at which such vote is given.
84. Subject to the provisions of the Statutes, a resolution in writing
signed by all the Members for the time being entitled to receive notice of and
to attend and vote at General Meetings (or being corporations by their duly
authorized representatives) shall be as valid and effective as if the same had
been passed at a General Meeting of the Company duly convened and held, and may
consist of two or more documents in like form each signed by one or more of the
Members.
85. Any corporation which is a Member of the Company may by resolution of
its directors or other governing body authorise such person as it thinks fit to
act as its representative at any meeting of the Company or of any class of
Members of the Company, and the person so authorized shall be entitled to
exercise the same powers on behalf of the corporation which he represents as
that corporation could exercise if it were an individual member of the Company.
55
85A. When two or more valid but differing appointments of proxy are
delivered or received for the same share for use at the same meeting, the one
which is last validly delivered or received (regardless of its date or the date
of its execution) shall be treated as replacing and revoking the other or others
as regards that share. If the Company is unable to determine which appointment
was last validly delivered or received, none of them shall be treated as valid
in respect of that share.
DIRECTORS
86. Unless and until the Company in General Meeting shall otherwise
determine, the number of Directors shall be not fewer than two.
87. A Director shall not be required to hold any shares in the capital of
the Company. A Director who is not a Member shall nevertheless be entitled to
receive notice of and attend and speak at all General Meetings of the Company
and all separate General Meetings of the holders of any class of shares in the
capital of the Company.
88. Any provisions of the Statutes which, subject to the provisions of
these Articles, would have the effect of rendering any person ineligible for
appointment as a Director or liable to vacate office as Director on account of
his having reached any specified age or of requiring special notice or any other
special formality in connection with the appointment of any Director over a
specified age, shall not apply to the Company. This Article 88 is subject to
Article 107.
89. A Director of the Company may be or continue as or become a director
or other officer servant or member of, or otherwise interested in, any company
promoted by the Company or in which the Company may be interested as shareholder
or otherwise, and no such Director shall be accountable to the Company for any
remuneration or other benefits received or receivable by him as a director or
other officer servant or member of, or from his interest in, such other company.
90. (1) The Directors (other than any Director who shall for the time
being hold an executive office or employment under the Company or a subsidiary
of the Company) shall be paid out of the funds of the Company by way of fees for
their services as Directors such sums (if any) as the Directors may from time to
time determine (not exceeding in the aggregate an annual sum of (pound)500,000
or such larger amount as the Company may by Ordinary Resolution determine). Such
remuneration shall be deemed to accrue from day to day.
(2) The Directors may also be paid all reasonable travelling, hotel and
other expenses properly incurred by them in attending and returning from
meetings of the Directors or any committee of the Directors or General Meetings
or otherwise in connection with the business of the Company.
91. Any Director who is appointed to any executive office or who serves on
any committee or who devotes special attention to the business of the Company,
or who otherwise performs services which in the opinion of the Directors are
outside the scope of the ordinary duties of a Director, may be paid such
remuneration or extra remuneration by way of salary, percentage of profits or
otherwise as the Directors may determine.
56
92. The Company shall in accordance with the provisions of the Statutes
duly keep a register showing, as respects each Director, interests of his in
shares in, or debentures of, the Company or associated companies.
ALTERNATE DIRECTORS
93. (A) Each Director shall have the power at any time to appoint as an
alternate Director either (i) another Director or (ii) any other person approved
for that purpose by a resolution of the Directors, and, at any time, to
terminate such appointment. Every appointment and removal of an alternate
Director shall be in writing signed by the appointor and (subject to any
approval required) shall (unless the Directors agree otherwise) only take effect
upon receipt of such written appointment or removal at the Office or at a
meeting of the Directors. An alternate Director shall not be required to hold
any shares in the capital of the Company and shall not be counted in reckoning
the maximum and minimum number of Directors allowed or required by Article 86.
(B) An alternate Director so appointed shall not be entitled as such to
receive any remuneration from the Company except only such part (if any) of the
remuneration otherwise payable to his appointor as such appointor may by notice
in writing to the Company from time to time direct, but shall otherwise be
subject to the provisions of these Articles with respect to Directors. An
alternate Director shall during his appointment be an officer of the Company and
shall not be deemed to be an agent of his appointor.
(C) An alternate Director shall (subject to his giving to the Company an
address within the United Kingdom at which notices may be served upon him) be
entitled to receive notices of all meetings of the Directors and of any
committee of the Directors of which his appointor is a member and to attend and
vote as a Director at any such meeting at which his appointor is not personally
present and generally in the absence of his appointor to perform and exercise
all functions, rights, powers and duties as Director of his appointor, and to
receive notice of all General Meetings.
(D) The appointment of an alternate Director shall automatically determine
on the happening of any event which if he were a Director would cause
him to vacate such office or if his appointor shall cease for any reason to be a
Director otherwise than by retiring and being re-appointed at the same meeting.
(E) A Director or any other person may act as alternate Director to
represent more than one Director and an alternate Director shall be entitled at
meetings of the Directors or any committee of the Directors to one vote for
every Director whom he represents in addition to his own vote (if any) as a
Director, but shall count as only one for the purpose of determining whether a
quorum be present.
(F) In this Article 93, references to "in writing" include the use of
electronic communications subject to such terms and conditions as the Directors
may decide.
57
BORROWING POWERS
94. (A) Subject as hereinafter provided, the Directors may exercise all
the powers of the Company to borrow money, and to mortgage or charge its
undertaking, property and uncalled capital, and to issue debentures, debenture
stock and other securities whether outright or as collateral security for any
debt, liability or obligation of the Company or of any third party.
(B) The Directors shall restrict the borrowings of the Company and
exercise all voting and other rights or powers of control exercisable by the
Company in relation to its subsidiary companies (if any) so as to ensure (so
far, as regards subsidiary companies as by such exercise they can secure), that
the aggregate amount for the time being remaining undischarged of all moneys
borrowed by the Company and any of its subsidiary companies (exclusive of moneys
for the time being owing by any subsidiary to the Company or to another
subsidiary or by the Company to any subsidiary) shall not without the previous
sanction of an Ordinary Resolution of the Company exceed the greater of (pound)1
billion ((pound)1,000,000,000) or an amount equal to ten times the Adjusted
Total of Capital and Reserves. For the purpose of the said limit, the issue of
debentures shall be deemed to constitute a borrowing notwithstanding that the
same may be issued in whole or in part for a consideration other than cash.
(C) The expression "Adjusted Total of Capital and Reserves" means the
aggregate of:
(i) the amount paid up or credited as paid up on the issued share
capital of the Company; and
(ii) the amounts standing to the credit of the capital, special and
revenue reserves (including any share premium account, capital redemption
reserve fund and profit and loss account) of the Company;
all as shown in the latest audited Balance Sheet of the Company after:
(i) deducting an amount equivalent to any distribution by the
Company, or by any of its subsidiaries otherwise than in favour of the
Company out of profits down to the date of such Balance Sheet of the
Company which may have been declared, recommended or made since that date
except in so far as such distribution is provided for in such Balance Sheet
of the Company;
(ii) making such adjustments as may be appropriate to reflect any
variation in the paid up share capital of the Company or in the said
capital reserves which has taken place since the date of such Balance Sheet
of the Company or which would result from any transaction contemplated at
the time when the Adjusted Total of Capital and Reserves is being
calculated or from any transaction connected therewith.
(D) The expression "Balance Sheet" means a balance sheet prepared in
accordance with generally accepted accounting principles in the United Kingdom.
(E) A certificate in writing by the Auditors for the time being of the
Company as to the amount of the Adjusted Total of Capital and Reserves or as to
the amount deemed to be
58
outstanding as borrowed moneys at any date shall be conclusive for all purposes
as to the matters thereby certified.
(F) No lender or other person dealing with the Company or any of its
subsidiary companies shall be concerned to see or inquire whether the limit
imposed by this Article is observed, and no debt incurred or security given in
excess of such limit shall be invalid or ineffectual unless the lender or the
recipient of the security had at the time when the debt was incurred or security
given express notice that the said limit had been or would thereby be exceeded.
POWERS AND DUTIES OF DIRECTORS
95. The business of the Company shall be managed by the Directors, who may
exercise all such powers of the Company as are not, by the Statutes or by these
Articles, required to be exercised by the Company in General Meeting, subject,
nevertheless, to the provisions of these Articles and of the Statutes, and to
such directions, being not inconsistent with any provisions of these Articles
and of the Statutes, as may be given by the Company in General Meeting: Provided
that no direction given by the Company in General Meeting shall invalidate any
prior act of the Directors which would have been valid if such direction had not
been given. The general powers conferred upon the Directors by this Article
shall not be deemed to be abridged or restricted by any specific authority or
power conferred upon the Directors by any other Article.
96. (A) The Directors may procure the establishment and maintenance of or
participate in, or contribute to any non-contributory or contributory pension or
superannuation fund, scheme or arrangement or life assurance scheme or
arrangement for the benefit of, and pay, provide for or procure the grant of
donations, gratuities, pensions, allowances, benefits or emoluments to, any
persons who are or shall have been at any time Directors of the Company or in
the employment or service of the Company or of any company which is or was a
subsidiary of or allied to or associated with the Company or of the predecessors
in business of the Company or any such subsidiary or associated company or the
wives, widows, families, relatives or dependants of any such persons and so that
any Director shall be entitled to receive and retain for his own benefit any
such pension, annuity, gratuity, allowance or other benefit (whether under any
such fund or scheme or otherwise).
(B) The Directors may also procure the establishment and subsidy of or
subscription to and support of any institutions, associations, clubs, funds or
trusts calculated to be for the benefit of any such persons as aforesaid or
otherwise to advance the interests and well-being of the Company or of any such
other company as aforesaid, or its members, and may take or procure payments for
or towards the insurance of any such persons as aforesaid and subscriptions or
guarantees for charitable or benevolent objects or for any exhibition or for any
public, general or useful object.
(C) Without prejudice to the provisions of Article 154 the Directors shall
have power to purchase and maintain insurance for or for the benefit of any
persons who are or were at any time Directors, officers or employees or auditors
of the Company, or of any other company which is its holding company or in which
the Company or such holding company or any of the
59
predecessors of the Company or of such holding company has any interest whether
direct or indirect or which is in any way allied to or associated with the
Company, or of any subsidiary undertaking of the Company or of any such other
company, or who are or were at any time trustees of any pension fund in which
any employees of the Company or of any such other company or subsidiary
undertaking are interested, including (without prejudice to the generality of
the foregoing) insurance against any liability incurred by such persons in
respect of any act or omission in the actual or purported execution and/or
discharge of their duties and/or in the exercise or purported exercise of their
powers and/or otherwise in relation to their duties, powers or offices in
relation to the Company or any such other company, subsidiary undertaking or
pension fund. For the purposes of this Regulation "holding company" and
"subsidiary undertaking" shall have the same meanings as in the Companies Act
1989.
(D) Without prejudice to the generality of the foregoing paragraphs of
this Article, the Directors may exercise any of the powers conferred by the
Statutes to make provision for the benefit of any such persons as aforesaid in
connection with the cessation or the transfer to any person of the whole or part
of the undertaking of the Company or any of its subsidiaries.
(E) The Directors may procure any of the matters aforesaid to be done by
the Company either alone or in conjunction with any other company.
97. The Directors may make such arrangements as they think fit for the
management and transaction of the Company's affairs in the United Kingdom and
elsewhere and may from time to time and at any time establish any local boards
or agencies for managing any of the affairs of the Company in any specified
locality, and may appoint any persons to be members of such local board, or any
managers or agents, and may fix their remuneration. And the Directors from time
to time, and at any time, may delegate to any person so appointed any of the
powers, authorities, and discretions for the time being vested in the Directors
(other than the powers of borrowing and of making calls), with power to
sub-delegate, and may authorise the members for the time being of any such local
board, or any of them, to fill up any vacancies therein, and to act
notwithstanding vacancies; and any such appointment or delegation may be made on
such terms and subject to such conditions as the Directors may think fit, and
the Directors may at any time remove any person so appointed, and may annul or
vary any such delegation.
98. The Directors may from time to time and at any time by power of
attorney appoint any company, firm or person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purposes and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Directors under
these Articles) and for such period and subject to such conditions as they may
think fit, and any such powers of attorney may contain such provisions for the
protection and convenience of persons dealing with any such attorney as the
Directors may think fit and may also authorise any such attorney to sub-delegate
all or any of the powers, authorities and discretions vested in him.
99. The Company may exercise the powers conferred by the Statutes with
regard to having an official seal for use abroad and the powers conferred by
Section 40 of the Companies Act 1985 with regard to having an official seal for
sealing and evidencing securities, and such powers shall be vested in the
Directors.
60
100. The Company may exercise the powers conferred upon the Company by the
Statutes with regard to the keeping of an overseas branch register, and the
Directors may (subject to the provisions of the Statutes) make and vary such
regulations as they may think fit respecting the keeping of any such register.
101. (A) Subject to the provisions of the Statutes, a Director may hold
any other office or place of profit under the Company, except that of Auditor,
in conjunction with the office of Director and may act by himself or through his
firm in a professional capacity for the Company, and in any such case on such
terms as to remuneration and otherwise as the Directors may arrange. Any such
remuneration shall be in addition to any remuneration provided for by any other
Article. No Director or intending Director shall be disqualified by his office
from entering into any contract, arrangement, transaction or proposal with the
Company either with regard to his tenure of any such other office or place of
profit or any such acting in a professional capacity or as a vendor, purchaser
or otherwise. Subject to the provisions of the Statutes and save as therein
provided no such contract, arrangement, transaction or proposal entered into by
or on behalf of the Company in which any Director or person connected with him
is in any way interested, whether directly or indirectly, shall be liable to be
avoided, nor shall any Director who enters into any such contract, arrangement,
transaction or proposal or who is so interested be liable to account to the
Company for any profit realised by any such contract, arrangement, transaction
or proposal by reason of such Director holding that office or of the fiduciary
relation thereby established, but he shall declare the nature of his interest in
accordance with the Statutes.
(B) Save as herein provided, a Director shall not vote in respect of any
contract, arrangement, transaction or any other proposal whatsoever in which he
has any material interest otherwise than by virtue of his interests in shares or
debentures or other securities of or otherwise in or through the Company. A
Director shall not be counted in the quorum at a meeting in relation to any
resolution on which he is debarred from voting.
(C) A Director shall (in the absence of some other material interest than
is indicated below) be entitled to vote (and be counted in the quorum) in
respect of any resolution concerning any of the following matters, namely:
(i) the giving of any security or indemnity to him in respect of
money lent or obligations incurred by him at the request of or for the
benefit of the Company or any of its subsidiaries;
(ii) the giving of any security or indemnity to a third party in
respect of a debt or obligation of the Company or any of its subsidiaries
for which he himself has assumed responsibility in whole or in part under a
guarantee or indemnity or by the giving of security;
(iii) any proposal concerning an offer of shares or debentures or
other securities of or by the Company or any of its subsidiaries for
subscription or purchase in which offer he is or is to be interested as a
participant in the underwriting or sub-underwriting thereof;
61
(iv) any contract, arrangement, transaction or other proposal
concerning any other body corporate in which he is interested, directly or
indirectly and whether as an officer or shareholder or otherwise howsoever,
provided that he is not the holder of or beneficially interested in one per
cent. or more of any class of the equity share capital of such body
corporate (or of a third body corporate through which his interest is
derived) or of the voting rights available to members of the relevant body
corporate (any such interest being deemed for the purposes of this Article
to be a material interest in all circumstances);
(v) any contract, arrangement, transaction or other proposal
concerning the adoption, modification or operation of a superannuation fund
or retirements death or disability benefits scheme under which he may
benefit and which relates to both employees and Directors of the Company
and which does not accord to any Director as such any privilege or
advantage not generally accorded to the employees to whom such scheme or
fund relates;
(vi) any contract, arrangement, transaction or other proposal
concerning the adoption, modification or operation of any scheme for
enabling employees including full-time Executive Directors of the Company
and/or any subsidiary to acquire shares of the Company or any arrangement
for the benefit of employees of the Company or any of its subsidiaries
under which the Director benefits in a similar manner to employees and
which does not accord to any Director as such any privilege or advantage
not generally accorded to the employees to whom the scheme relates; and
(vii) any proposal concerning any insurance which the Company is
empowered to purchase and/or maintain for or for the benefit of any
Directors of the Company or for persons who include Directors of the
Company.
(D) A Director shall not vote or be counted in the quorum on any
resolution concerning his own appointment as the holder of any office or place
of profit with the Company or any company in which the Company is interested
including fixing or varying the terms of his appointment or the termination
thereof.
(E) Where proposals are under consideration concerning the appointment
(including fixing or varying the terms of appointment) of two or more Directors
to offices or employments with the Company or any company in which the Company
is interested, such proposals may be divided and considered in relation to each
Director separately and in such cases each of the Directors concerned (if not
debarred from voting under paragraph (C)(iv) of this Article) shall be entitled
to vote (and be counted in the quorum) in respect of each resolution except that
concerning his own appointment.
(F) If any question shall arise at any meeting as to the materiality of a
Director's interest or as to the entitlement of any Director to vote and such
question is not resolved by his voluntarily agreeing to abstain from voting,
such question shall be referred to the Chairman of the meeting and his ruling in
relation to any other Director shall be final and conclusive except in a case
where the nature or extent of the interests of the Director concerned have not
been fairly disclosed.
62
(G) Subject to the provisions of the Statutes the Company may by Ordinary
Resolution suspend or relax the provisions of this Article to any extent or
ratify any transaction not duly authorized by reason of a contravention of this
Article.
102. The Directors may exercise or procure the exercise of the voting
rights conferred by the shares in any other company held or owned by the
Company, and may exercise any voting rights to which they are entitled as
Directors of such other company, in such manner as they shall in their absolute
discretion think fit, including the exercise thereof in favour of any resolution
appointing themselves or any of them as directors, officers or servants of such
other company, and fixing their remuneration as such, and may vote as Directors
of this Company in connection with any of the matters aforesaid.
103. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments, and all receipts for moneys paid to the Company, shall
be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be,
in such manner as the Directors shall from time to time determine.
104. (A) The Directors shall cause minutes to be made in books provided
for the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors present at each meeting of the
Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the
Company, and of the Directors, and of committees of Directors.
It shall not be necessary for Directors present at any meeting of Directors or
committee of Directors to sign their names in the Minute Book or other book kept
for recording attendance. Any such minute as aforesaid, if purporting to be
signed by the Chairman of the meeting at which the proceedings were had, or by
the Chairman of the next succeeding meeting, shall be receivable as prima facie
evidence of the matters stated in such minutes without any further proof.
(B) Any Director or the Secretary or any person appointed by the Directors
for the purpose shall have power to authenticate any documents affecting the
constitution of the Company and any resolutions passed by the Company or the
Directors or any committee, and any books, records, documents and accounts
relating to the business of the Company, and to certify copies thereof or
extracts therefrom as true copies or extracts; and where any books, records,
documents or accounts are elsewhere than at the Office the local manager or
other officer of the Company having the custody thereof shall be deemed to be a
person appointed by the Directors as aforesaid. A document purporting to be a
copy of a resolution, or an extract from the minutes of a meeting, of the
Company or of the Directors or any committee which is certified as aforesaid
shall be conclusive evidence in favour of all persons dealing with the Company
upon the faith thereof that such resolution has been duly passed or, as the case
may be, that any minute so extracted is a true and accurate record of
proceedings at a duly constituted meeting.
63
DISQUALIFICATION OF DIRECTORS
105. The office of a Director shall be vacated in any of the following
events, namely:
(a) if he becomes bankrupt or a receiving order is made against him
or he makes any arrangement or composition with his creditors generally;
(b) if he becomes prohibited by law from acting as a Director;
(c) if in England or elsewhere an Order is made by any Court claiming
jurisdiction in that behalf on the ground (however formulated) of mental
disorder for his detention or for the appointment of a guardian or receiver
or other person to exercise powers with respect to his property or affairs;
(d) if he resigns his office by notice in writing under his hand to
the Company or offers in writing under his hand to resign and the Directors
resolve to accept such offer;
(e) if not having leave of absence from the Directors, he and his
alternate (if any) fail to attend the meetings of the Directors for six
successive months, unless prevented by illness, unavoidable accident or
other cause which may seem to the Directors to be sufficient, and the
Directors resolve that his office be vacated;
(f) if three quarters of the other Directors or, if their number is
not four or a multiple of four, then the number nearest to but not less
than three quarters, resolve that he be removed as a Director.
ROTATION OF DIRECTORS
106. Each Director shall retire from office at the third Annual General
Meeting after his appointment or, if earlier, the Annual General Meeting which
falls in the third calendar year after his appointment. A Director retiring at a
meeting shall retain office until the dissolution of such meeting.
107. Any Director must retire at the first Annual General Meeting of the
Company which takes place after he reaches the age of 70, and annually
thereafter.
108. The Company at the meeting at which a Director retires under any
provision of these Articles may by Ordinary Resolution fill up the vacated
office by electing thereto the retiring Director or some other person eligible
for appointment. In default the retiring Director shall be deemed to have been
re-elected except in any of the following cases, namely if:
(a) at such meeting it is expressly resolved not to fill up such
vacated office or a resolution for the re-election of such Director is put
to the meeting and lost; or
(b) such Director has given notice in writing to the Company that he
is unwilling to be re-elected; or
64
(c) the default is due to the moving of a resolution in contravention
of the next following Article.
In this Article 108, references to "in writing" include the use of
electronic communications subject to such terms and conditions as the Directors
may decide.
109. A single resolution for the appointment of two or more persons as
Directors shall not be put at any General Meeting, unless a resolution that it
shall be so put has first been agreed to by the meeting without any vote being
given against it.
110. No person other than a Director retiring at the meeting shall, unless
recommended by the Directors, be eligible for election or re-election to the
office of Director at any General Meeting unless not less than seven nor more
than twenty-one days before the date appointed for the meeting there shall have
been left at the Office notice in writing, signed by a Member (other than the
person proposed) duly qualified to attend and vote at such meeting, of his
intention to propose such person for election, and also notice in writing signed
by that person of his willingness to be elected or re-elected. In this Article
110, references to "in writing" include the use of electronic communications
subject to such terms and conditions as the Directors may decide.
111. The Company may from time to time by Ordinary Resolution increase or
reduce the number of Directors then in office, and may also determine in what
rotation the increased or reduced number is to go out of office.
112. The Directors shall have power at any time, and from time to time, to
appoint any person to be a Director of the Company, either to fill a casual
vacancy or as an addition to the existing Directors, but so that the total
number of Directors shall not at any time exceed the maximum number, if any,
fixed by or pursuant to these Articles. Any Director so appointed shall hold
office only until the next following Annual General Meeting, and shall then be
eligible for re-election but shall not be taken into account in determining the
Directors who are to retire by rotation at such meeting.
113. The Company may by Ordinary Resolution, of which special notice has
been given in accordance with the provisions of the Statutes, remove any
Director before the expiration of his period of office notwithstanding anything
in these Articles or in any agreement between the Company and such Director.
Such removal shall be without prejudice to any claim such Director may have for
damages for breach of any contract of service between him and the Company.
114. The Company may by Ordinary Resolution appoint another person in place
of a Director removed from office under the immediately preceding Article, and
without prejudice to the powers of the Directors under Article 112 the Company
in General Meeting may appoint any person to be a Director either to fill a
casual vacancy or as an additional Director. A person appointed in place of a
Director so removed or to fill such a vacancy shall be subject to retirement at
the same time as if he had become a Director on the day on which the Director in
whose place he is appointed was last elected a Director.
65
PROCEEDINGS OF DIRECTORS
115. (A) The Directors may meet together for the despatch of business,
adjourn and otherwise regulate their meetings, as they think fit, and determine
the quorum necessary for the transaction of business. Until otherwise determined
two Directors shall constitute a quorum. Questions arising at any meeting shall
be decided by a majority of votes. In case of an equality of votes, the Chairman
shall have a second or casting vote. A Director may, and the Secretary on the
requisition of a Director shall, at any time summon a meeting of the Directors.
Any Director may waive notice of any meeting and any such waiver may be
retroactive.
(B) All or any of the Directors or any committee thereof may participate
in a meeting of the Directors or that committee by means of a conference
telephone or any communication equipment which allows all persons participating
in the meeting to hear each other. Any person so participating shall be deemed
to be present in person at the meeting and shall be entitled to vote or be
counted in a quorum accordingly. Such a meeting shall be deemed to take place
where the largest group of those participating is assembled, or, if there is no
such group, where the Chairman of the meeting is then present.
116. Notice of a meeting of the Directors shall be deemed to be duly given
to a Director if it is given to him personally or by word of mouth or sent in
writing to him at his last known address or any other address given by him to
the Company for this purpose. It shall not be necessary to give notice of a
meeting of the Directors to (a) any Director for the time being absent or
intending to be absent from the United Kingdom unless such Director has
requested the Company that notice of meetings of the Directors shall during his
absence be sent in writing to him at his last known address or any other address
given by him to the Company for this purpose, whether or not out of the United
Kingdom or (b) to any alternate Director who has not given to the Company an
address within the United Kingdom at which notice may be served upon him. In
this Article 116, references to "in writing" include the use of electronic
communications subject to such terms and conditions as the Directors may decide.
117. The continuing Directors or sole continuing Director may act
notwithstanding any vacancy in their body, but, if and so long as their number
is reduced below the number fixed by or pursuant to these Articles as the
necessary quorum of Directors, the continuing Directors or Director may act for
the purpose of increasing the number of Directors to that number, or of
summoning a General Meeting of the Company, but for no other purpose. If there
be no Directors or Director able or willing to act, then any two Members may
summon a General Meeting for the purpose of appointing Directors.
118. The Directors may elect from their number a Chairman and a Deputy
Chairman of their meetings and determine the period for which each is to hold
office; but if no such Chairman or Deputy Chairman be elected, or if at any
meeting no Chairman or Deputy Chairman shall be present within five minutes
after the time appointed for holding the same, the Directors present shall
choose one of their number to be Chairman of such meeting.
119. The Directors may from time to time and always in compliance with
Article 10A(H)(iii) appoint committees consisting of one or more members of
their body as they think fit and may co-opt one or more other persons as
hereinafter provided. The Directors may
66
delegate any of their powers or discretions to any such committee and from time
to time revoke any such delegation and discharge any such committee wholly or in
part. Insofar as any such power or discretion is so delegated any reference in
these Articles to the exercise of discretion by the Directors of such power or
discretion shall be read and construed as if it were a reference to such
committee. Any committee so formed shall in the exercise of the powers so
delegated conform to any regulations that may be imposed by the Directors in
default of which proceedings of a committee consisting of more than one member
shall be regulated mutatis mutandis like the proceedings of the Directors. Any
such regulations may provide for or authorise the co-option to the committee of
persons other than Directors and for such co-opted members to have voting rights
as members of the committee but so that (a) the number of co-opted members shall
be less than one-half of the total number of members of the committee and (b) no
resolution of the committee shall be effective unless a majority of the members
of the committee present throughout the meeting are Directors.
120. All acts done by any meeting of the Directors or of a committee of the
Directors or by any person acting as a Director shall, notwithstanding that it
be afterwards discovered that there was some defect in the appointment or
continuance in office of any of the persons acting as aforesaid, or that any of
such persons were or was disqualified from holding office or not entitled to
vote, or had in any way vacated office, be as valid as if every such person had
been duly appointed or had duly continued in office and was qualified and had
continued to be a Director or member of the committee and was entitled to vote.
121. A resolution in writing, signed by all the Directors for the time
being entitled to receive notice of a meeting of the Directors, shall be as
valid and effective for all purposes as a resolution of the Directors passed at
a meeting duly convened and held, and may consist of two or more documents in
like form each signed by one or more of the Directors: Provided that such a
resolution need not be signed by an alternate Director if it is signed by the
Director who appointed him. In this Article 121, references to "in writing"
include the use of electronic communications subject to such terms and
conditions as the Directors may decide.
MANAGING AND EXECUTIVE DIRECTORS
122. Subject to the provisions of the Statutes the Directors may from time
to time appoint one or more of their body to be the holder of any executive
office (including, where considered appropriate, the office of Chairman or
Deputy Chairman), for such period and on such terms as they think fit, and,
subject to the terms of any service contract entered into in any particular case
and without prejudice to any claim for damages such Director may have for breach
of any such service contract, may revoke or vary the terms of such appointment.
The appointment of a Director to such office shall, without prejudice, to any
claim for damages such Director may have for breach of any service contract
between him and the Company, be automatically determined if he ceases from any
cause to be a Director.
123. The salary or remuneration of any Director holding any executive
office shall, subject as provided in any contract, be such as the Directors may
from time to time determine, and may either be a fixed sum of money, or may
altogether or in part be governed by the business done or profits made, and may
include the making of provisions for the payment to him, his widow or other
dependants, of a pension on retirement from the office or employment to
67
which he is appointed and for the participation in pension and life assurance
benefits, or may be upon such other terms as the Directors determine.
124. The Directors may entrust to and confer upon any Director holding any
executive office any of the powers exercisable by them upon such terms and
conditions and with such restrictions as they may think fit, and either
collaterally with or to the exclusion of their own powers and may from time to
time revoke, withdraw, alter or vary all or any of such powers.
SECRETARY
125. (A) Subject to the provisions of the Statutes the Secretary shall be
appointed by the Directors for such term, at such remuneration and upon such
conditions as they think fit; and any Secretary so appointed may (without
prejudice to any claim for breach of damages for breach of any contract between
him and the Company) be removed by them.
(B) A provision of the Statutes or these Articles requiring or authorising
a thing to be done by or to a Director and the Secretary shall not be satisfied
by its being done by or to the same person acting both as Director and as, or in
place of, the Secretary.
(C) The Directors may, at any time and from time to time, appoint any
person to be Assistant or Deputy Secretary and anything required or authorized
to be done by or to the Secretary may be done by or to any Assistant or Deputy
Secretary so appointed; and any Assistant or Deputy Secretary may (without
prejudice to any claim for damages for breach of any contract between him and
the Company) be removed by the Directors.
THE SEAL
126. (A) The Directors shall provide for the safe custody of the Seal and
any official seal under Section 40 of the Companies Act 1985, and the Company
may exercise the powers conferred by the Statutes with regard to having an
official seal for use in any territory outside the United Kingdom, and such
powers shall be vested in the Directors. Whenever in these Articles reference is
made to the Seal, the reference shall, when and so far as may be applicable, be
deemed to include any such official seal as aforesaid.
(B) Where the Statutes so permit, any instrument signed by one Director
and the Secretary or by two Directors and expressed to be executed by the
Company shall have the same effect as if executed under the Seal.
(C) The Seal shall not be affixed to any instrument and no instrument
shall be executed having the same effect as if executed under the Seal except by
the general or special authority of a resolution of the Directors, or of a
committee of the Directors authorized in that behalf. The Directors may from
time to time make such regulations as they think fit (subject to the provisions
of these Articles) determining the persons and the number of such persons who
shall sign every instrument to which the Seal is affixed. Until otherwise so
determined, every such instrument shall be signed by a Director and
countersigned by the Secretary or another Director, and in favour of any
purchaser or person bona fide dealing with the Company, the signatures of such
persons shall be conclusive evidence of the fact that the Seal has been properly
affixed.
68
(D) Every certificate of shares, debentures, debenture stock or
representing any other form of security of the Company (other than letters of
allotment, receipts for securities or certificates of deposit) shall be issued
under the Seal or under any official seal kept by the Company pursuant to
Section 40 of the Act or in such other manner having the same effect as if
issued under the Seal.
(E) Each certificate to which the Seal shall be affixed shall bear the
autographic signatures of at least one Director and the Secretary or other
person acting in the place of the Secretary, provided that the Directors may by
resolution determine (either generally or in any particular case or cases) that
such signatures shall be dispensed with, or shall be affixed by means of some
method of system of mechanical signature.
(F) Each certificate to which such official seal as is referred to in
paragraph (D) of this Article shall be affixed need not bear any signatures.
RESERVE
127. Subject to Article 10A(C)(i), the Directors may, before recommending
any dividend, set aside out of the profits of the Company such sums as they
think proper as a reserve or reserves which shall, at the discretion of the
Directors, be applicable for any purpose to which the profits of the Company may
be properly applied, and pending such application may, at the like discretion,
either be employed in the business of the Company or be invested in such
investments as the Directors think fit. The Directors may divide the reserve
into such special funds as they think fit, and may consolidate into one fund any
special funds or any parts of any special funds into which the reserve may have
been divided as they think fit. The Directors may also without placing the same
to reserve carry forward any profits which they may think prudent not to divide.
DIVIDENDS
128. The profits of the Company available for dividend and resolved to be
distributed shall be applied in the payment of dividends to the Members in
accordance with their respective rights and priorities. The Company in General
Meeting may declare dividends, but no dividend shall exceed the amount
recommended by the Directors. Dividends regarding the Participating Shares shall
be paid only in accordance with Article 10A(C).
129. The Directors may if they think fit from time to time pay to the
Members such interim dividends as appear to the Directors to be justified by the
profits of the Company. If at any time the share capital of the Company is
divided into different classes the Directors may pay such interim dividends in
respect of those shares in the capital of the Company which confer on the
holders thereof deferred or non-preferred rights as well as in respect of those
shares which confer on the holders thereof preferential rights with regard to
dividend and provided that the Directors act bona fide they shall not incur any
responsibility to the holders of shares conferring a preference for any damage
that they may suffer by reason of the payment of an interim dividend on any
shares having deferred or non-preferred rights. The Directors may also pay the
fixed dividend payable on any shares of the Company half-yearly or otherwise on
fixed dates, whenever such profits, in the opinion of the Directors, justify
that course.
69
130. No dividend or interim dividend shall be paid otherwise than in
accordance with the provisions of the Statutes which apply to the Company.
131. Subject to the rights of persons, if any, entitled to shares with any
priority, preference or special rights as to dividend, all dividends shall be
declared and paid according to the amounts paid up on the shares in respect
whereof the dividend is paid, but no amount paid up on a share in advance of
calls shall be treated for the purpose of this Article as paid up on the share.
All dividends shall be apportioned and paid proportionately to the amounts paid
up on the shares during any portion or portions of the period in respect of
which the dividend is paid; but if any share is issued on terms providing that
it shall rank for dividend as if paid up in full or in part from a particular
date, whether past or future, such share shall rank for dividend accordingly.
132. (1) The Directors may deduct from any dividend or other moneys
payable to any Member on or in respect of a share all sums of money (if any)
presently payable by him to the Company on account of calls or otherwise in
relation to shares of the Company.
(2) The waiver in whole or in part of any dividend on any share by any
document (whether or not under seal) shall be effective only if such document is
signed by the shareholder (or the person entitled to the share in consequence of
death or bankruptcy of the holder or otherwise by operation of law) and
delivered to the Company and if or to the extent that the same is accepted as
such or acted upon by the Company.
133. Any General Meeting declaring a dividend may, upon the recommendation
of the Directors, by Ordinary Resolution direct payment of such dividend wholly
or in part by the distribution of specific assets and in particular of paid up
shares or debentures of any other company, and the Directors shall give effect
to such direction. Where any difficulty arises in regard to such distribution,
the Directors may settle the same as they think expedient, and in particular may
issue fractional certificates and fix the value for distribution of such
specific assets or any part thereof and may determine that cash payments shall
be made to any Members upon the footing of the value so fixed in order to adjust
the rights of all parties, and may vest any such specific assets in trustees as
may seem expedient to the Directors.
134. (A) All dividends and interest shall belong and be paid (subject to
any lien of the Company) to those Members whose names shall be on the Register
at the date at which such dividend shall be declared or at the date on which
such interest shall be payable respectively, or at such other date as the
Company by Ordinary Resolution or the Directors may determine notwithstanding
any subsequent transfer or transmission of shares. The Company may pay any
dividend, interest or other moneys payable in cash in respect of shares, by
direct debit, bank transfer, cheque, dividend warrant or money order and may
remit the same by post directed to the registered address of the holder or, in
the case of joint holders, to the registered address of the joint holder whose
name stands first in the Register, or to such person and to such address as the
holder or joint holders may in writing direct, and the Company shall not be
responsible for any loss of any such cheque, warrant or order. In respect of
shares which are in uncertificated form, the Company may also pay any dividend,
interest or other moneys by such other method as the Directors may think fit
which is permitted by and is in accordance with the facilities and requirements
of the relevant system concerned and, subject to the requirements of the
relevant system, every such payment shall be effected at the risk of the person
or persons entitled to the
70
money represented thereby. Every such cheque, warrant or order shall be made
payable to the order of the person to whom it is sent, or to such person as the
holder or joint holders may in writing direct, and the payment of such cheque,
warrant or order or payment by such other method as is permitted by the relevant
system shall be a good discharge to the Company. If any such cheque, warrant or
order or payment by such other method as is permitted by the relevant system has
or shall be alleged to have been lost, stolen or destroyed, the Directors may,
on request of the person entitled thereto, issue a replacement cheque, warrant
or order or payment by such other method as is permitted by the relevant system
subject to compliance with such conditions as to evidence and indemnity and the
payment of out of pocket expenses of the Company in connection with the request
as the Directors may think fit. Any one of two or more joint holders may give
effectual receipts for any dividends or other moneys payable in respect of the
share held by him as joint holder.
(B) If on two consecutive occasions (or following one such occasion, where
reasonable enquiries have failed to establish another address or account of the
person entitled to the payment) cheques warrants or orders in payment of
dividends or other moneys payable in respect of any share have been sent through
the post in accordance with the provisions of this Article but have been
returned undelivered or left un-cashed during the periods for which the same are
valid, the Company need not thereafter despatch further cheques or warrants in
payment of dividends or other moneys payable in respect of the share in question
until the Member or other person entitled thereto shall have communicated with
the Company and supplied in writing to the Office an address for the purpose.
The Company shall not be responsible for any cheque or warrant lost in
transmission.
135. No dividend or other moneys payable on or in respect of a share shall
bear interest against the Company.
136. All dividends, interest or other sums payable unclaimed may be
invested or otherwise made use of by the Directors for the benefit of the
Company until claimed and so that the Company shall not thereby be constituted a
trustee in respect thereof. All dividends, interest or other sums unclaimed for
a period of twelve years (or such shorter period as may be approved under any
regulations from time to time made by the UK Listing Authority or the London
Stock Exchange and to which the Company is subject) after their date of payment
shall be forfeited and shall revert to the Company. The payment of any unclaimed
dividend, interest or other sum payable by the Company on or in respect of any
share into a separate account shall not constitute the Company a trustee
thereof.
CAPITALISATION OF PROFITS AND SCRIP DIVIDENDS
137. Subject to the provisions of Article 138, the Directors may capitalise
any part of the amount for the time being standing to the credit of any of the
Company's reserve accounts (including any share premium account and capital
redemption reserve) or to the credit of the profit and loss account (in each
case, whether or not such amounts are available for distribution), and
appropriate the sum resolved to be capitalised either:
(i) to the holders of Ordinary Shares who would have been entitled
thereto if distributed by way of dividend and in the same proportions; and
the Directors shall apply
71
such sum on their behalf either in or towards paying up the amounts, if
any, for the time being unpaid on any shares held by such holders of
Ordinary Shares respectively or in paying up in full at par unissued shares
or debentures of the Company to be allotted credited as fully paid up to
such holders of Ordinary Shares in the proportion aforesaid, or partly in
the one way and partly in the other;
(ii) to such holders of Ordinary Shares who may, in relation to any
dividend or dividends, validly accept an offer or offers on such terms and
conditions as the Directors may determine (and subject to such exclusions
or other arrangements as the Directors may consider necessary or expedient
to deal with legal or practical problems in respect of overseas
shareholders) to receive new Ordinary Shares, credited as fully paid up, in
lieu of the whole or any part of any such dividend or dividends (any such
offer being called a "Scrip Dividend Offer"); and the Directors shall apply
such sum on their behalf in paying up in full at par unissued shares (in
accordance with the terms, conditions and exclusions or other arrangements
of the Scrip Dividend Offer) to be allotted credited as fully paid up to
such holders respectively;
(iii) to the holders of the Participating Shares for the issue of
bonus shares in accordance with Article 10A(C)(iv), 10A(F)(iii)(d) or
10A(F)(iii)(e).
138. (1) The authority of the Company in General Meeting shall be required
before the Directors implement any Scrip Dividend Offer (which authority may
extend to one or more offers), but for the avoidance of doubt shall not be
required in relation to the issue of bonus shares to the holders of the
Participating Shares in accordance with Article 10A(C)(iv).
(2) The authority of the Company in General Meeting shall be required for
any capitalisation pursuant to paragraph (i) of Article 137 above.
(3) A share premium account and a capital redemption reserve and any other
amounts which are not available for distribution may only be applied in the
paying up of unissued shares to be allotted to holders of Ordinary Shares of the
Company credited as fully paid up, or for the issue of bonus shares to the
holders of the Participating Shares in accordance with Article 10A(C)(iv),
10A(F)(iii)(d) or 10A(F)(iii)(e).
(4) The Directors may in their discretion suspend or terminate any Scrip
Dividend Offer which is in operation, but for the avoidance of doubt may not
suspend or terminate the issue of bonus shares to the holders of the
Participating Shares in accordance with Article 10A(C)(iv), 10A(F)(iii)(d) or
10A(F)(iii)(e).
139. Whenever a capitalisation requires to be effected, the Directors may
do all acts and things which they may consider necessary or expedient to give
effect thereto, with full power to the Directors to make such provision as they
think fit for the case of shares or debentures becoming distributable in
fractions (including provisions whereby fractional entitlements are disregarded
or the benefit thereof accrues to the Company rather than to the Members
concerned) and also to authorise any person to enter on behalf of all Members
concerned into an agreement with the Company providing for any such
capitalisation and matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
72
ACCOUNTS
140. The Directors shall cause accounting records to be kept in accordance
with the provisions of the Statutes.
141. The accounting records shall be kept at the Office or, subject to the
provisions of the Statutes, at such other place or places as the Directors think
fit, and shall always be open to the inspection of the officers of the Company.
142. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or regulations the
accounting records of the Company or any of them shall be open to the inspection
of Members not being Directors, and no Member (not being a Director) shall have
any right of inspecting any account or book or document of the Company except as
conferred by statute or authorized by the Directors or by the Company in General
Meeting.
143. The Directors shall from time to time in accordance with the
provisions of the Statutes, cause to be prepared and to be laid before the
Company in General Meeting such profit and loss accounts, balance sheets, group
accounts (if any) and reports as are referred to in the Statutes.
144. A copy of every balance sheet (including every document required by
law to be annexed thereto) which is to be laid before the Company in General
Meeting, together with a copy of the Auditors' report and Directors' report,
shall not less than twenty-one days before the date of the meeting be sent to
every Member (whether or not he is entitled to receive notices of General
Meetings of the Company) and every holder of debentures of the Company (whether
or not he is so entitled) and to every other person who is entitled to receive
notices of meetings from the Company under the provisions of the Statutes or
these Articles, provided that this Article shall not require a copy of those
documents to be sent to any person of whose address the Company is not aware or
to more than one of the joint holders of any shares or debentures and provided
further that if the Statutes so permit the company need not send copies of such
documents to members who do not wish to receive them but may send them such
summary financial statement or other documents as may be authorized by the
Statutes.
144A. (A) Any documents required or permitted to be sent by the Company to
a person pursuant to Article 144 shall be treated as sent if:
(i) sent by electronic communication to an address for the time
being notified to the Company by that person for that purpose;
or
(ii) published on a web-site, provided that the following conditions
are met:
(a) the Company and that person have agreed that such documents
may be accessed by him on a web-site (instead of their being
sent by post or otherwise delivered to him);
(b) that person is notified, in a manner for the time being
agreed for the purpose between him and the Company, of;
73
(i) the publication of the documents on a web-site;
(ii) the address of that web-site;
(iii) the place on that web-site where the documents may be
accessed; and
(iv) how they may be accessed.
(B) Documents treated in accordance with sub-paragraph (A)(ii) of this
Article 144A as sent to any person are to be treated as sent to him not less
than 21 clear days before the date of a meeting if, and only if:
(i) the documents are published on the web-site throughout a period
beginning at least 21 clear days before the date of the meeting
and ending with the conclusion of the meeting; and
(ii) the notification given for the purposes of sub-paragraph
(A)(ii)(b) of this Article 144A is given not less than 21 clear
days before the date of the meeting.
(C) Nothing in paragraph (B) of this Article 144A shall invalidate the
proceedings of a meeting where any documents that are required to be published
as mentioned in sub-paragraph (B)(i) of this Article are by accident published
in different places on the web-site or published for a part, but not all, of the
period mentioned in that sub-paragraph.
AUDIT
145. Auditors shall be appointed and their duties regulated in accordance
with the provisions of the Statutes.
NOTICES
146. A notice to be given to or by a person pursuant to these Articles
(other than a notice convening a meeting of the Directors or of a committee of
the Directors) shall be in writing or in an electronic communication to an
address for the time being notified for that purpose to the person giving the
notice.
146A. A notice or other document may be given to a Member by the Company:
(i) personally; or
(ii) by sending it by post in a pre-paid envelope addressed to the
member at his registered address; or
(iii) by sending it by post to the address, if any, within the United
Kingdom, supplied by him to the Company for the giving of
notice to him; or
74
(iv) by giving it by electronic communication to an address for the
time being notified to the Company by the member for that
purpose.
146B. A Member who has no registered address within the United Kingdom, and
has not supplied to the Company an address within the United Kingdom, shall not
be entitled to receive any notice from the Company. Any Member whose registered
address is not within the United Kingdom and who gives the Company an address
for the purposes of electronic communications may, at the absolute discretion of
the Directors, have notices or documents sent to him at that address.
146C. A notice of general meeting may, instead of being sent to the Member
in any of the ways specified in Article 146A, be given to a Member by the
Company by publishing the notice on a web-site, provided that the following
conditions are met:
(i) the Member and the Company have agreed that notices of general
meetings may be accessed by him on a web-site instead of being
sent to the Member in one of the ways specified in Article 146A;
and
(ii) the Member is given a notification, in the manner agreed for the
time being between the Member and the Company, containing the
following information:
(a) the fact that the notice has been published on the web-site;
(b) the address of the web-site;
(c) the place on the web-site where the notice may be accessed
and how it may be accessed;
(d) a statement that it concerns a notice of general meeting
served in accordance with the Statutes;
(e) the place, date and time of the general meeting; and
(f) whether the general meeting is to be an annual or
extraordinary general meeting.
A notice given under this Article 146C is deemed to be given at the time of the
notification under sub-paragraph (B)(ii) of this Article 146C.
147. (A) If at any time by reason of the suspension or any curtailment of
postal services in the United Kingdom the Company is unable effectively to
convene a General Meeting by notices sent through the post, a General Meeting
may be convened by a notice advertised on the same date in at least two daily
newspapers with national circulation and such notice shall be deemed to have
been duly served on all members entitled thereto on the day when the
advertisement appears. In any such case the Company shall send confirmatory
copies of the notice by post if at least seven days prior to the date of the
Meeting the posting of notices to addresses throughout the United Kingdom again
becomes practicable.
75
(B) Any notice to the bearer of a warrant or to any other person who holds
or is interested in shares in the Company in bearer form or any related coupons
or talons shall be sufficiently given if advertised in at least two daily
newspapers with a national circulation in the United Kingdom and any such notice
shall be deemed given on the day when the advertisement appears.
(C) Any notice required to be given by the Company to the Members or any
of them, and not provided for by or pursuant to these Articles shall be
sufficiently given if given by advertisement which shall be inserted once in at
least one daily newspaper with a national circulation in the United Kingdom.
Such a notice given by advertisement shall be deemed to have been served on the
day on which the advertisement appears.
68. Where a notice or other document is sent by post, service of the
notice shall be deemed to be effected by properly addressing, prepaying, and
posting a letter containing the notice, and to have been effected at the latest
on the day following that on which the letter containing the same is posted (by
whatever class); and in proving such service it shall be sufficient to prove
that the letter containing the same was properly addressed, stamped and posted.
148A. (i) Proof that a notice contained in an electronic communication was
sent in accordance with guidance issued by the Institute of Chartered
Secretaries and Administrators shall be conclusive evidence that the notice was
given.
(ii) A notice contained in an electronic communication sent in
accordance with these Articles other than a notice given under Article 146C
(to which the provisions of Article 146C apply) is deemed to be given at
the expiration of 48 hours after the time it was sent.
149. A notice may be given by the Company to the joint holders of a share
by giving the notice to the joint holder first named in the Register in respect
of the share.
150. A notice may be given by the Company to the persons entitled to a
share in consequence of the death or bankruptcy of a Member by sending it
through the post in a prepaid letter addressed to them by name, or by the title
of representatives of the deceased, or trustee of the bankrupt, or by any like
description, at the address, if any, within the United Kingdom supplied for the
purpose by the persons claiming to be so entitled, or (until such an address has
been so supplied) by giving the notice in any manner in which the same might
have been given if the death or bankruptcy had not occurred.
151. Subject to such restrictions affecting the right to receive notice as
are for the time being applicable to the holders of any class of shares, notice
of every General Meeting shall be given in any manner hereinbefore authorized
to:
(a) every Member except those Members who (having no registered
address within the United Kingdom) have not supplied to the Company an
address within the United Kingdom for the giving of notices to them;
(b) the Auditor for the time being of the Company;
76
(c) the Directors and (if any) alternate Directors.
No other person shall be entitled to receive notices of General Meetings.
152. Every person who becomes entitled to a share shall be bound by a
notice in respect of that share which, before his name is entered in the
Register, has been duly given to a person from whom he derives his title
provided that no person who becomes entitled to a share shall be subject to the
provisions of Article 76 by reason of any notice served under Section 212 of the
Companies Act 1985 on the person from whom he derives his title before his name
is entered in the Register.
WINDING UP
153. If the Company shall be wound up the Liquidator may, with the sanction
of an Extraordinary Resolution of the Company and any other sanction required by
the Statutes, divide amongst the Members in specie or kind the whole or any part
of the assets of the Company (whether they shall consist of property of the same
kind or not) and may, for such purpose, set such value as he deems fair upon any
property to be divided as aforesaid and may determine how such division shall be
carried out as between the Members or different classes of Members. The
Liquidator may, with the like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories as the
Liquidator, with the like sanction, shall think fit, but so that no Member shall
be compelled to accept any shares or other securities whereon there is any
liability.
INDEMNITY
154. Subject to the provisions of the Statutes, every Director or other
officer or Auditor for the time being of the Company shall be indemnified out of
the assets of the Company against all costs, charges, expenses, losses or
liabilities which he may sustain or incur in or about the actual or purported
execution of the duties of his office or otherwise in relation thereto,
including (without prejudice to the generality of the foregoing) any liability
incurred by him in defending any proceedings, whether civil or criminal, in
which judgment is given in his favour or in which he is acquitted or in
connection with any application in which relief is granted to him by the Court
from liability for negligence, default, breach of duty or breach of trust in
relation to the affairs of the Company.
UNTRACED SHAREHOLDERS
155. (A) The Company shall be entitled to sell at the best price
reasonably obtainable at the time of sale shares of a Member or shares to which
a person is entitled by transmission if and provided that:
(i) during the period of twelve years prior to the date of the
publication of the advertisements referred to in paragraph (ii) below (or,
if published on different dates, the first thereof) no cheque or warrant
sent by the Company through the post in a prepaid letter addressed to the
Member or to the person entitled by transmission to the shares at his
address on the Register or other the last known address given by the Member
or the person entitled by transmission to which cheques and warrants are to
be sent has been
77
cashed and no communication has been received by the Company from the
Member or the person entitled by transmission and at least three dividends
whether interim or final on or in respect of the shares in question have
become payable and no such dividend has been claimed; and
(ii) the Company shall on expiry of the said period of twelve years
have inserted advertisements in both a leading national daily newspaper and
in a newspaper circulating in the area in which the address referred to in
paragraph (i) above is located giving notice of its intention to sell the
said shares; and
(iii) during the said period of twelve years and the period of three
months following publication of the advertisements the Company shall have
received no communication from such Member or person; and
(iv) notice shall have been given to the London Stock Exchange of
its intention to make such sale; and
(v) at the date of sale and when the instrument of transfer is
executed, the shares are in certificated form or, if the shares are in
uncertificated form at the date of sale, the sale and transfer comply with
the requirements of the Uncertificated Securities Regulations.
(B) To give effect to any such sale the Directors may:
(a) where the shares are in certificated form, authorize any
person to execute an instrument of transfer of the shares, and such
instrument of transfer shall be as effective as if it had been
executed by the holder of, or person entitled by transmission to, the
shares; or
(b) where the shares are in uncertificated form, do all acts and
things they consider necessary or expedient to effect the transfer of
the shares, which exercise of powers shall be as effective as if
exercised by the holder of, or person entitled by transmission to, the
shares.
The transferee shall not be bound to see to the application of the purchase
money, and his title to the shares shall not be affected by any irregularity in,
or invalidity of, the proceedings in reference to the sale. The net proceeds of
sale shall belong to the Company which shall be obliged to account to the former
member or other person previously entitled as aforesaid for an amount equal to
such proceeds and shall enter the name of such former member or other person in
the books of the Company as a creditor for such amount which shall be a
permanent debt of the Company. No trust shall be created in respect of the debt,
no interest shall be payable in respect of the same and the Company shall not be
required to account for any money earned on the net proceeds, which may be
employed in the business of the Company or invested in such investments (other
than shares of the Company or its holding company if any) as the Directors may
from time to time think fit.
78
No: 1101386
THE COMPANIES ACTS 1948 TO 1989
----------
COMPANY LIMITED BY SHARES
----------
MEMORANDUM OF ASSOCIATION
- of -
DANKA BUSINESS SYSTEMS PLC
ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 071-638-1111
Fax: 071-972-7900
No: 1101386
THE COMPANIES ACTS 1948 to 1989
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
(As altered by Resolution of the Directors passed on 11th September 1981 and by
Special Resolution passed on 17th September 1982 and by Special Resolution
passed on 1st August 1991)
- of -
DANKA BUSINESS SYSTEMS PLC
----------
1. The name of the Company is "DANKA BUSINESS SYSTEMS PLC". /1/
2. The company is to be a public company.
3. The registered office of the Company will be situated in England and Wales.
4. The objects for which the Company is established are:
(A) (i) To act as the holding and coordinating company of the Group of
companies of which the Company is for the time being the holding
company,
(ii) To carry on the business of acquiring, holding, selling,
endorsing, discounting, or otherwise dealing with or disposing
of, shares, stocks, debentures, debenture stock, scrip bonds,
mortgages, bills, notes, credits, contracts, certificates,
coupons, warrants, and other documents, funds, obligations,
securities and investments issued or guaranteed by any company,
corporation, society or trust constituted or carrying on business
in any part of the world and in the funds or loans or other
securities and investments of or issued or guaranteed by any
Government, State or
- --------
/1/ The name of the Company was changed from New Court Natural Resources PLC to
American Business Systems PLC on 20th January 1987, and from American Business
Systems PLC to Danka Business Systems PLC on 14th June 1991.
Dominion, public body or authority, supreme, municipal, local or
otherwise, whether at home or abroad.
(B) To acquire any of the stocks, shares, funds, obligations, securities,
investments and other documents before enumerated by original
subscription, tender, purchase, participation in syndicates, exchange
or otherwise, and whether or not fully paid up and to make payments
thereon as called up or in advance of calls or otherwise, and to
subscribe for the same either conditionally or otherwise, and to
guarantee or underwrite the subscription thereof, and to exercise and
enforce all rights and powers conferred by or incident to the
ownership hereof, and to vary and transpose from time to time as may
be considered expedient any of the Company's investments for the time
being.
(C) To acquire and hold, or lend money upon the security of any land of
any tenure wherever situate or of any interest therein.
(D) To lend and advance money or give credit to any persons, firms,
societies or companies upon any terms and either without security or
with such security of any kind whatever as may be thought fit.
(E) To purchase, take on lease or in exchange, hire or otherwise acquire
and hold, for any estate or interest, and manage any lands, buildings,
servitudes, easements, rights, privileges, concessions, machinery,
plant, stock-in-trade and any heritable or moveable real or personal
property of any kind.
(F) To purchase or otherwise acquire any patents, brevets d'invention,
licenses, concessions, copyrights, trade marks, designs and the like,
conferring any exclusive or non-exclusive or limited right to use, or
any secret or other information as to any invention, process or
development which may seem to the Company capable of being used for
any of the purposes of the Company, or the acquisition of which may
seem calculated directly or indirectly to benefit the Company, to use,
exercise, develop, grant licenses in respect of or otherwise turn to
account any of the same and with a view of the working and development
of the same to carry on any business whatsoever, whether manufacturing
or otherwise, which the Company may think calculated directly or
indirectly to achieve these objects.
(G) To form, promote, subsidise and assist companies, syndicates or other
bodies of all kinds and to issue on commission or otherwise
underwrite, subscribe for and take or guarantee the payment of any
dividend or interest on any shares, stocks, debentures or other
capital or securities or obligations of any such companies, syndicates
or other bodies, and to pay or provide for brokerage commission and
underwriting in respect of any such issue.
(H) To enter into partnerships or into any arrangement for sharing
profits, union of interests, co-operation, reciprocal concessions or
otherwise, with any person or company for the purpose of carrying on
business within any of the objects of the Company.
(I) To carry on any other business which may seem to the Company capable
of being conveniently carried on in connection with the above or
calculated directly or indirectly to enhance the value of or render
profitable any of the Company's property or rights.
(J) To purchase or otherwise acquire and undertake all or any part of the
business, property, liabilities and transactions of any person or
company carrying on any business which this Company is authorized to
carry on, or possessed of property suitable for any of the purposes of
the Company.
(K) To develop, work, improve, manage, lease, mortgage, charge, pledge,
turn to account or otherwise deal with all or any part of the property
of the Company, to surrender or accept
-2-
surrender of any lease or tenancy or rights, and to sell the property,
business or undertaking of the Company, or any part thereof, for such
consideration as the Company may think fit, and in particular for cash
or shares, debentures or securities of any other company.
(L) To construct, erect, maintain, alter, replace or remove any buildings,
works, offices, erections, plant, machinery, tools, or equipment as
may seem desirable for any of the businesses or in the interests of
the Company, and to manufacture, buy, sell and generally deal in any
plant, tools, machinery, goods or things of any description which may
be conveniently dealt with in connection with any of the Company's
objects.
(M) To manage and conduct the affairs of any companies, firms and persons
carrying on business of any kind whatsoever, and in any part of the
world.
(N) To enter into, carry on and participate in financial transactions and
operations of all kinds and to take any steps which may be considered
expedient for carrying into effect such transactions and operations
including, without prejudice to the generality of the foregoing,
borrowing and lending money and entering into contracts and
arrangements of all kinds.
(O) To borrow or raise money in such manner as the Company shall think fit
and in particular by the issue (whether at par or at a premium or
discount and for such consideration as the Company may think fit) of
bonds, debentures (payable to bearer or otherwise), mortgages or
charges, perpetual or otherwise, and, if the Company thinks fit,
charged upon all or any of the Company's property (both present and
future) and undertaking including its uncalled capital and further, if
so thought fit, convertible into any stock or shares of the Company or
any other company, and collaterally or further to secure any
obligations of the Company by a trust deed or other assurance.
(P) To guarantee or otherwise support or secure, either with or without
the Company receiving any consideration or advantage and whether by
personal covenant or by mortgaging or charging all or part of the
undertaking, property, assets and rights present and future and
uncalled capital of the Company or by both such methods or by any
other means whatsoever, the liabilities and obligations of and the
payment of any moneys whatsoever (including but not limited to
capital, principal, premiums, interest, dividends, costs and expenses
on any stocks, shares or securities) by any person, firm or company
whatsoever including but not limited to any company which is for the
time being the holding company or a subsidiary (both as defined by
Section 154 of the Companies Act 1948) of the Company or of the
Company's holding company or is otherwise associated with the Company
in its business.
(Q) To grant indemnities of every description and to undertake obligations
of every description.
(R) To make, draw, accept, indorse and negotiate bills of exchange or
other negotiable instruments and to receive money on deposit or loan.
(S) To pay all or any expenses incurred in connection with the formation
and promotion and incorporation of the Company and to pay commission
to and remunerate any person or company for services rendered in
underwriting or placing, or assisting to underwrite or place, any of
the shares in the Company's capital or any debentures or other
security of the Company, or in or about the formation or promotion of
the Company or the conduct of its business.
-3-
(T) To pay for any property or rights acquired by the Company either in
cash or fully or partly paid-up shares with or without preferred or
deferred rights in respect of dividend or repayment of capital or
otherwise, or by any securities which the Company has power to issue,
or partly in one mode and partly in another and generally on such
terms as the Company may determine.
(U) To accept payment for any property or rights sold or otherwise
disposed of or dealt with by the Company, either in cash, by
installments or otherwise, or in fully or partly paid-up shares of any
company or corporation, with or without deferred or preferred rights
in respect of dividend or repayment of capital or otherwise, or in
debentures or mortgage debentures or debenture stock, mortgages or
other securities of any company or corporation, or partly in one mode
and partly in another, and generally on such terms as the Company may
determine.
(V) To remunerate any person, firm or company rendering services to the
Company, whether by cash payment or by the allotment to him it or them
of shares or securities of the Company credited as paid in full or in
part or otherwise.
(W) To make loans or donations to such persons and in such cases (and in
the case of loans either of cash or of other assets) as the Company
may think directly or indirectly conducive to any of its objects or
otherwise expedient.
(X) To distribute among the members in specie any property of the Company
or any proceeds of sale, disposal or realisation of any property of
the Company but so that no distribution amounting to a reduction of
capital be made except with the sanction (if any) for the time being
required by law.
(Y) To subscribe for, purchase or otherwise acquire, take, hold, or sell
any shares or stock, bonds, debentures or debenture stock, or other
securities or obligations of any company and to invest or lend any of
the moneys of the Company not immediately required for its operations
in such manner, with or without security, and whether at home or
abroad, as the Company may think fit.
(Z) To amalgamate with any other company whose objects are or include
objects similar to those of the Company and on any terms whatsoever.
(AA) To procure the Company to be registered or recognised in any country
or place abroad.
(BB) To obtain any provisional or other order or Act of Parliament of this
country or of the legislature of any other State for enabling the
Company to carry any of its objects into effect, or for effecting any
modifications of the Company's constitution, or for any other purpose
which may seem expedient, and to oppose any proceeding or application
which may seem calculated, directly or indirectly, to prejudice the
Company's interests.
(CC) To appoint any person or persons, firm or firms, company or companies
to be the attorney or agent of the Company and to act as agents,
managers, secretaries, contractors or in similar capacity.
(DD) To insure the life of any person who may, in the opinion of the
Company, be of value to the Company as having or holding for the
Company interests, goodwill or influence or other assets and to pay
the premiums on such insurance.
(EE) To establish and maintain or procure the establishment and maintenance
of contributory or non-contributory pension or superannuation funds
for the benefit of the persons referred to below, to grant emoluments,
pensions, allowances, donations, gratuities and
-4-
bonuses to such persons and to make payments for or towards insurance
on the life or lives of such persons; to establish, subsidise,
subscribe to or otherwise support any institution, association,
society, club, other establishment, or fund, the support of which may,
in the opinion of the Company, be calculated directly or indirectly to
benefit the Company or any such persons, or may be connected with any
place where the Company carries on business; to institute and maintain
any institution, association, society, club or other establishment or
profit-sharing scheme calculated to advance the interests of the
Company or such persons; to join, participate in and subsidise or
assist any association of employers or employees or any trade
association; and to prescribe or guarantee money for charitable or
benevolent objects or for any public, general or useful object or for
any exhibition; the said persons are any persons who are or were at
any time in the employment or service of the Company or of any company
which is for the time being the holding company or a subsidiary (both
as defined by Section 154 of the Companies Act 1948) of the Company or
of the Company's holding Company or is otherwise associated with the
Company in its business or who are or were at any time directors or
officers of the Company or of such other company as aforesaid, and
holding or who held any salaried employment or office in the Company
or such other company, and the wives, widows, families or dependants
of any such persons.
(FF) To take, make, execute, enter into, commence, carry on, prosecute or
defend all steps, contracts, agreements, negotiations, legal and other
proceedings, compromises, arrangements and schemes, and to do all
other acts, matters and things which shall at any time appear
conducive or expedient for the advantage or protection of the Company.
(GG) (i) To purchase and maintain insurance for or for the benefit of any
persons who are or were at any time directors, officers, employees or
auditors of the Company, or of any other company which is its holding
company or in which the Company or such holding company or any of the
predecessors of the Company or of such holding company has any
interest whether direct or indirect or which is in any way allied to
or associated with the Company, or of any subsidiary undertaking of
the Company or of any such other company, or who are or were at any
time trustees of any pension fund in which any employees of the
Company or of any such other company or subsidiary undertaking are
interested, including (without prejudice to the generality of the
foregoing) insurance against any liability incurred by such persons in
respect of any act or omission in the actual or purported execution
and/or discharge of their duties and/or in the exercise or purported
exercise of their powers and/or otherwise in relation to their duties,
powers or offices in relation to the Company or any such other
company, subsidiary undertaking or pension fund; and (ii) to such
extent as may be permitted by law otherwise to indemnify or to except
any such person against or from any such liability; for the purposes
of this Clause "holding company" and "subsidiary undertaking" shall
have the same meanings as in the Companies Act 1989.
(HH) To do all or any of the above things in any part of the world and
either as principals, agents, contractors, trustees or otherwise, and
either alone or in conjunction with others.
(II) To do all such acts or things as are incidental or conducive to the
attainment of the above objects or any of them.
It is hereby declared that the word "company" in this Clause, except where
used in reference to the Company, shall be deemed to include any partnership or
other body of persons, whether incorporated or not incorporated, and whether
domiciled in the United Kingdom or elsewhere and whether now existing or
hereafter to be formed, and it is also hereby declared that the objects
specified in each sub-clause of this Clause, shall, except when otherwise
expressed therein, be in nowise limited or restricted by reference to or
inference from the terms of any other sub-clause, or the name of the Company,
and none of the sub-clauses shall be deemed merely subsidiary or auxiliary to
the objects mentioned in the first sub-clause.
5. The liability of the members is limited;
-5-
*6. The Share Capital of the Company is (pound)100 divided into 100 Ordinary
Shares of (pound)1 each with power to increase the capital and to consolidate
and sub-divide the same. The Shares in the original or any increased capital may
be divided into several classes and there may be attached thereto respectively
any preferential, deferred or other special rights, privileges, conditions or
restrictions as to dividends, capital, redemption, voting or otherwise.
* By a Special Resolution passed on 7th May, 1973 each of the issued and
unissued Ordinary Shares of (pound)1 each were sub-divided into 4 Ordinary
Shares of 25p each and by an Ordinary Resolution passed on that day the
authorised share capital was increased from (pound)100 to (pound)5,025,000 by
the creation of 20,099,600 Ordinary Shares of 25p each.
* By a Special Resolution passed on 7th September, 1977 and pursuant to a
Scheme of Arrangement under Section 206 of the Companies Act, 1948 sanctioned by
an Order of the High Court of Justice dated 31st October, 1977 the capital of
the Company was reduced from (pound)5,025,000 divided into 20,100,000 Ordinary
Shares of 25p each to (pound)1,005,000 divided into 20,100,000 ordinary Shares
of 5p each.
* By an Ordinary Resolution passed on 13th July, 1981 the authorised
share capital of the Company was increased from (pound)1,005,000 to
(pound)2,000,000 by the creation of 19,900,000 additional Ordinary Shares of 5p
each.
* By an Ordinary Resolution passed on 17th September, 1982 the authorised
Share Capital of the Company was increased from (pound)2,000,000 to
(pound)2,350,000 by the creation of 7,000,000 additional Ordinary Shares of 5p
each.
* By an Ordinary Resolution passed on 15th September, 1986 the authorised
share capital of the Company was increased from (pound)2,350,000 to
(pound)4,500,000 by the creation of 43,000,000 additional Ordinary Shares of 5p
each.
* By an Ordinary Resolution passed on 22nd December, 1986 the authorised
share capital of the Company was increased from (pound)4,500,000 to
(pound)26,900,000 by the creation of 448,000,000 additional Ordinary Shares of
5p each.
* By a Special Resolution passed on 29th December, 1986 the authorised share
capital of the Company was reduced from (pound)26,900,000 to (pound)2,690,000
divided into 53,800,000 Ordinary Shares of 5p each.
WE, the several persons whose names, addresses and descriptions are
subscribed, are desirous of being formed into a Company in pursuance of this
Memorandum of Association and we respectively agree to take the number of shares
in the capital of the Company set opposite our respective names,
Number of Shares
NAMES, taken by each
ADDRESSES AND DESCRIPTIONS Subscriber
OF SUBSCRIBERS (in words)
- --------------------------------------------------------------------------------
1. D.T.R. LEWIS, One
Kempson House,
Camomile Street,
London EC3A 7AN
Solicitor
-6-
2. IAN SWABEY, One
Kempson House,
Camomile Street,
London EC3A 7AN
Solicitor
- --------------------------------------------------------------------------------
Dated this 1st March, 1973
Witness to the above Signatures,
DAVID J, SHAW,
Kempson House,
Camomile Street,
London EC3A 7AN
Solicitor
-7-