EXHIBIT 1.1
COMPANIES ACTS, 1963 TO 1999
______________________________
COMPANY LIMITED BY SHARES
______________________________
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
TRINTECH GROUP PUBLIC LIMITED COMPANY
(as amended by Special Resolutions
up to 26th July, 2000)
__________________________________________________
Incorporated 29th January, 1987
__________________________________________________
A & L Goodbody,
Solicitors,
International Financial Services Centre,
North Wall Quay,
Dublin 1.
DCMA3101.08x
1
COMPANIES ACTS, 1963 TO 1999
____________________________
COMPANY LIMITED BY SHARES
_________________________
MEMORANDUM OF ASSOCIATION
OF
TRINTECH GROUP PUBLIC LIMITED COMPANY
(as amended by Special Resolutions
up to 26th July, 2000)
_______________________________
1. The name of the Company is TRINTECH GROUP PUBLIC LIMITED COMPANY.
2. The Company is to be a Public Limited Company.
3. The objects for which the Company is established are:-
(a) To carry on the business of an investment and holding company in all
its branches, and to acquire by purchase, lease, concession, grant,
licence or otherwise such businesses, options, rights, privileges,
lands, buildings, leases, underleases, stocks, shares, debentures,
debenture stock, bonds, obligations, securities, reversionary
interests, annuities, policies of assurance and other property and
rights and interests in property as the company shall deem fit and
generally to hold, manage, develop, lease, sell or dispose of the same;
and to vary any of the investments of the company, to act as trustees
of any deeds constituting or securing any debentures, debenture stock
or other securities or obligations; to establish, carry on, develop and
extend investments and holdings and to sell, dispose of or otherwise
turn the same to account and to coordinate the policy and
administration of any companies of which this company is a member or
which are in any manner controlled by or connected with the company.
(b) To exercise and enforce all rights and powers conferred to or incident
upon the ownership of any shares, stock obligations or other securities
2
acquired by the Company including without prejudice to the generality
of the foregoing all such powers of veto or control as may be conferred
by virtue of the holding by the company of such special proportion of
the issued or nominal amount thereof and to provide managerial and
other executive, supervisory and consultant services for or in relation
to any company in which the company is interested upon such terms as
may be thought fit.
(c) To carry on any other business, except the issuing of policies of
insurance, 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.
(d) To invest any monies of the company in such investments and in such
manner as may from time to time be determined, and to hold, sell or
deal with such investments and generally to purchase, take on lease or
in exchange or otherwise acquire any real and personal property and
rights or privileges.
(e) To subscribe for, take, purchase or otherwise acquire and hold shares
or other interests in, or securities of any other company having
objects altogether or in part similar to those of this company or
carrying on any business capable of being carried on so as, directly or
indirectly, to benefit this company.
(f) To develop and turn to account any land acquired by the company or in
which it is interested and in particular by laying out and preparing
the same for building purposes, constructing, altering, pulling down,
decorating, maintaining, fitting up and improving buildings and
conveniences, and by planting, paving, draining, farming, cultivating,
letting on building lease or building agreement and by advancing money
to and entering into contracts and arrangements of all kinds with
builders, tenants and others.
(g) To acquire and undertake the whole or any part of the business,
property, goodwill and assets of any person, firm or company carrying
on or proposing to carry on any of the businesses which the company is
authorised to carry on, or which can be conveniently carried on in
connection with the same, or may seem
3
calculated directly or indirectly to benefit the company.
(h) To employ the funds of the company in the development and expansion of
the business of the company and all or any of its subsidiary or
associated companies and in any other company whether now existing or
hereafter to be formed and engaged in any like business of the company
or any of its subsidiary or associated companies or of any other
industry ancillary thereto or which can conveniently be carried on in
connection therewith.
(i) To lend money to such persons or companies either with or without
security and upon such terms as may seem expedient.
(j) To borrow or otherwise raise money or carry out any other means of
financing, whether or not by the issue of stock or other securities,
and to enter into or issue interest and currency hedging and swap
agreements, forward rate agreements, interest and currency futures or
options and other forms of financial instruments, and to purchase,
redeem or pay off any of the foregoing.
(k) To secure the payment of money or other performance of financial
obligations in such manner as the company shall think fit, whether or
not by the issue of debentures or debenture stock, perpetual or
otherwise, charged upon all or any of the company's property, present
or future, including its uncalled capital.
(l) To adopt such means of making known the company and its products and
services as may seem expedient.
(m) To sell, improve, manage, develop, exchange, lease, mortgage,
enfranchise, dispose of, turn to account or otherwise deal with all or
any part of the property, undertaking, rights or assets of the company
and for such consideration as the company might think fit. Generally to
purchase, take on lease or in exchange or otherwise acquire any real
and personal property and rights or privileges.
(n) To acquire and carry on any business carried on by a subsidiary or a
holding company of the company or another subsidiary of a holding
company of the company.
4
(o) To provide services of any kind including the carrying on of advisory,
consultancy, brokerage and agency business of any kind.
(p) To guarantee, grant indemnities in respect of, support or secure,
whether by personal covenant or by mortgaging or charging all or any
part of the undertaking, property and assets (present and future) and
uncalled capital of the company, or by both such methods, the
performance of the contracts or obligations of and the repayment or
payment of the principal amounts of and premiums, interest and
dividends on any securities of any person, firm or company, including
(without prejudice to the generality of the foregoing) any company
which is for the time being the company's holding company as defined by
section 155 of the Companies Act, 1963, or another subsidiary as
defined by the said section of the company's holding company or
otherwise associated with the company in business notwithstanding the
fact that the company may not receive any consideration, advantage or
benefit, direct or indirect from entering into such guarantee or other
arrangement or transaction contemplated herein.
(q) To amalgamate with any other company.
(r) To apply for, purchase or otherwise acquire any patents, brevets
d'invention, licences, trade marks, technology and know-how and the
like conferring any exclusive or non-exclusive or limited right to use
or any secret or other information as to any invention or technology
which may seem capable of being used, for any of the purposes of the
company or the acquisition of which may seem calculated directly or
indirectly to benefit the company, and to use, exercise, develop or
grant licences in respect of or otherwise turn to account the property
rights or information so acquired.
(s) To enter into partnership or into any arrangement for sharing profits,
union of interests, co-operation, joint venture or otherwise with any
person or company or engage in any business or transaction capable of
being conducted so as directly or indirectly to benefit the company.
(t) To grant pensions or gratuities (to include death benefits) to any
officers or employees or ex-officers or ex-employees of the company, or
its
5
predecessors in business or the relations, families or dependants
of any such persons, and to establish or support any non-contributory
or contributory pension or superannuation funds, any associations,
institutions, clubs, buildings and housing schemes, funds and trusts
which may be considered calculated to benefit any such persons or
otherwise advance the interests of the company or of its members.
(u) To promote any company or companies for the purpose of acquiring all or
any of the property and liabilities of this company or for any other
purpose which may seem directly or indirectly calculated to benefit
this company.
(v) To remunerate any person or company for services rendered or to be
rendered in placing or assisting to place or guaranteeing the placing
of any of the shares in the company's capital or any debentures,
debenture stock or other securities of the company, or in or about the
formation or promotion of the company or the conduct of its business.
(w) To draw, make, accept, endorse, discount, execute and issue promissory
notes, bills of exchange, bills of lading, warrants, debentures,
letters of credit and other negotiable or transferable instruments.
(x) To undertake and execute any trusts the undertaking whereof may seem
desirable, whether gratuitously or otherwise.
(y) To procure the company to be registered or recognised in any country or
place.
(z) To promote freedom of contract and to counteract and discourage
interference therewith, to join any trade or business federation, union
or association, with a view to promoting the company's business and
safeguarding the same.
(aa) To do all or any of the above things in any part of the world as
principal, agent, contractor, trustee or otherwise, and by or through
trustees, agents or otherwise and either alone or in conjunction with
others.
(ab) To distribute any of the property of the company in specie among the
members.
6
(ac) To do all such other things as the company may think incidental or
conducive to the attainment of the above objects or any of them.
NOTE: It is hereby declared that the word "company" in this clause (except
where it refers to this Company) shall be deemed to include any
partnership or other body of persons, whether incorporated or not
incorporated and whether domiciled in the Republic of Ireland, Northern
Ireland, Great Britain, or elsewhere, and the intention is that the
objects specified in each paragraph of this clause shall, except where
otherwise expressed in such paragraph, be in no way limited or
restricted by reference to, or inference from, the terms of any other
paragraph.
4. The liability of the members is limited.
5. The share capital of the Company is US$297,000 divided into 110,000,000
shares of US$0.0027 each. Any of the shares of the Company whether of the
original or any increased capital of the Company may be issued with any
special, qualified, preferred, deferred or other rights or privileges or
conditions as to capital, dividends, rights of voting or other matters but
so that any such rights, privileges or conditions shall not be altered or
modified except in accordance with the Articles of Association of the
Company.
7
We, the several persons whose names and addresses are subscribed, wish to be
formed into a company in pursuance of this Memorandum of Association and we
agree to take the number of shares in the capital of the Company set opposite
our respective names:
________________________________________________________________________________
Names, Addresses and Number of Shares taken
Descriptions of Subscribers by each Subscriber
________________________________________________________________________________
Xx. Xxxxxxx Xxxxxxx, One
000 Xxxxxxxx Xxxx,
Xxxxxx,
Xxxxxx 0.
Secretary
Xx. Xxxxxxx Xxxxx, One
00 Xx. Xxxxxxx Xxxx,
Xxxxxxxxx,
Xxxxxx 00.
Secretary
________________________________________________________________________________
Dated the 3rd day of November, 1986
Witness to the above signatures:-
Xxx. Xxxxxxxxx Xxxxx,
Xxxxxxx House,
Wellington Quay,
Dublin 2.
8
Companies Acts, 1963 to 1999
-----------------------------------
COMPANY LIMITED BY SHARES
-----------------------------------
ARTICLES OF ASSOCIATION
OF
TRINTECH GROUP
PUBLIC LIMITED COMPANY
=====================================
Incorporated 29th January, 1987
=====================================
(as adopted by Special Resolution passed
on 22nd September, 1999 and as amended by
Special Resolution up to 26th July, 2000)
A & L Goodbody,
Solicitors,
International Financial Services Centre,
North Wall Quay,
Dublin 1.
9
Companies Acts, 1963 to 1999
-------------------------
COMPANY LIMITED BY SHARES
-------------------------
ARTICLES OF ASSOCIATION
OF
TRINTECH GROUP
PUBLIC LIMITED COMPANY
-----------------------------------------------------
Part I - Preliminary 1. Interpretation 15
Part II - Share Capital and Rights 2. Share Capital 19
3. Rights of Shares on issue 19
4. Redeemable Shares 19
5. Variation of rights 20
6. Trust Trusts not recognised 20
7. Disclosure of interests 20
8. Allotment of Shares 22
9. Payment of commission 24
10. Payment by installments 24
Part III - Share Certificates 11. Issue of certificates 24
12. Balance and exchange certificates 24
13. Replacement of certificates 25
Part IV - Lien on Shares 14. Extent of lien 25
15. Power of sale 25
16. Power to effect transfer 26
17. Proceeds of sale 26
Part V - Calls on Shares an2+6d Forfeiture 18. Making of calls 26
19. Time of call 27
10
20. Liability of joint Holders 27
21. Interest on calls 27
22. Xxxxxxx treated as calls 27
23. Power to differentiate 27
24. Interest on moneys advanced 27
25. Notice requiring payment 28
26. Power of disposal 29
27. Effect of forfeiture 29
28. Statutory declaration 29
29. Non-Payment of sums due on Share issues 30
Part VI - Conversion of Shares into Stock 30. Conversion of Shares into stock 30
31. Transfer of stock 30
32. Rights of stockholders 30
Part VII - Transfer of Shares 33. Form of instrument of transfer 31
34. Execution of instrument of transfer 31
35. Refusal to register transfers 31
36. Procedure on refusal 32
37. Closing of transfer books 32
38. Absence of registration fees 32
39. Retention of transfer instruments 32
40. Renunciation of allotment 32
PART VIII - Transmission of Shares 41. Death of member 33
42. Transmission on death or bankruptcy 33
43. Rights before registration 33
Part IX - Alteration of Share Capital 44. Increase of capital 34
45. Consolidation, sub-division and cancellation of capital 34
46. Fractions on consolidation 35
47. Reduction of capital 35
48. Purchase of own Shares 36
Part X - General Meetings 49. Annual general meetings 36
50. Extraordinary general meetings 36
11
51. Convening general meetings 36
52. Notice of general meetings 37
Part XI - Proceedings at General Meetings 53. Quorum for general meetings 38
54. Special business 39
55. Chairman of general meetings 39
56. Directors' and Auditors' right to attend 40
general meetings
57. Adjournment of general meetings 40
58. Determination of resolutions 40
59. Amendments to resolutions 41
60. Entitlement to demand poll 41
61. Taking of a poll 41
62. Votes of members 42
63. Chairman's casting vote 42
64. Voting by joint Holders 42
65. Voting by incapacitated Holders 42
66. Default in payment of calls 43
67. Restriction of voting and other rights 43
68. Time for objection to voting 45
69. Appointment of proxy 46
70. Bodies corporate acting by representatives at meetings 46
71. Deposit of proxy instruments 46
72. Effect of proxy instruments 47
73. Effect of revocation of proxy or of authorisation 47
Part XII - Directors 74. Number of Directors 48
75. Share qualification 48
76. Ordinary remuneration of Directors 48
77. Special remuneration of Directors 49
78. Expenses of Directors 49
79. Alternate Directors 49
Part XIII - Powers of Directors 80. Directors' powers 50
81. Power to delegate 51
12
82. Appointment of attorneys 51
83. Local management 52
84. Borrowing powers 52
85. Execution of negotiable instruments 52
86. Provision for employees 52
Part XIV - Appointment and Retirement 87. Retirement by rotation 53
of Directors
88. Deemed reappointment 54
89. Eligibility for appointment 54
90. Appointment of additional Directors 54
Part XV - Disqualification and Removal 91. Disqualification of Directors 55
of Directors
92. Removal of Directors 56
Part XVI - Directors' Offices and Interests 93. Executive offices 56
94. Disclosure of interests by Directors 57
95. Directors' interests 57
96. Restriction on Directors' voting 59
97. Entitlement to grant pensions 62
Part XVII - Proceedings of Directors 98. Convening and regulation of Directors' meetings 62
99. Quorum for Directors' meetings 63
100. Voting at Directors' meetings 63
101. Telecommunication meetings 64
102. Chairman of the board of Directors 64
103. Validity of acts of Directors 64
104. Directors' resolutions or other documents in writing 65
Part XVIII - The Secretary 105. Appointment of Secretary 65
Part XIX - The Seal 106. Use of Seal 66
107. Seal for use abroad 66
108. Signature of sealed instruments 66
Part XX - Dividends and Reserves 109. Declaration of dividends 67
13
110. Scrip dividends 67
111. Interim and fixed dividends 70
112. Payment of dividends 70
113. Deductions from dividends 71
114. Dividends in specie 71
115. Payment of dividends by post 71
116. Dividends not to bear interest 72
117. Payment to Holders on a particular date 72
118. Unclaimed dividends 72
119. Reserves 72
Part XXI - Accounts 120. Accounts 73
Part XXII - Capitalisation of 121. Capitalisation of profits and reserves 74
Profits or Reserves
122. Capitalisation and use of non-distributable 75
profits and reserves
123. Implementation of capitalisation issues 75
Part XXIII - Notices 124. Notices in writing 76
125. Service of notices 76
126. Notices to members 78
127. Service on joint Holders 78
128. Service on transfer or transmission of Shares 78
129. Signature to notices 79
130. Deemed receipt of notices 79
Part XXIV - Winding up 131. Distribution on winding up 79
132. Distribution in specie 79
Part XXV - Miscellaneous 133. Minutes of meetings 80
134. Inspection 80
135. Secrecy 81
136. Destruction of records 81
137. Untraced Shareholders 82
138. Indemnity 84
14
Companies Acts, 1963 to 1999
----------------------------------
A PUBLIC COMPANY LIMITED BY SHARES
----------------------------------
ARTICLES OF ASSOCIATION
OF
TRINTECH GROUP
PUBLIC LIMITED COMPANY
(as adopted by Special Resolution passed on
22nd September, 1999 and as amended by
Special Resolutions up to 26th July, 2000)
------------------------------------------------
Part I - Preliminary
1. Interpretation
1 The regulations contained in Table A in the First Schedule to the
Companies Act, 1963 shall not apply to the Company.
2 In these Articles the following expressions shall have the following
meanings:
"the Acts" the Companies Acts, 1963 to 1999 including any
statutory modification or re-enactment thereof for
the time being in force;
"the 1963 Act" the Companies Act, 1963;
"the 1983 Act" the Companies (Amendment) Act, 1983;
"the 1990 Act" the Companies Act, 1990;
15
"these Articles" these articles of association as from time to time
altered by resolution of the Company and for the
time being in force;
"Associated
Company" any company which for the time being is a
subsidiary or a holding company of the Company, is
a subsidiary of a holding company of the Company
or is a company in which the Company or any of
such companies as aforesaid shall for the time
being hold shares entitling the holder thereof to
exercise at least one-fifth of the votes at any
general meeting of such company (not being voting
rights which arise only in specified
circumstances);
"the Auditors" the auditors for the time being of the Company;
"the Board" the board of Directors for the time being of the
Company;
"Clear Days" in relation to the period of a notice, that period
excluding the day when the notice is given or
deemed to be given and the day for which it is
given or on which it is to take effect or is
deemed to take effect;
"the Company" the company whose name appears at the head of
these Articles;
"the Directors" the directors for the time being of the Company or
the directors present at a meeting of the Board of
Directors and includes any person occupying the
position of director by whatever name called;
"the Group" the Company and its subsidiaries from time to
time and for the time being;
16
"the Holder" in relation to any Share, the Member whose name is
entered in the Register as the holder of the
Share;
"holding company" in relation to a company, a company of which such
company is a subsidiary;
"Interest" means any interest whatsoever in Shares (of any
size) which would be taken into account in
deciding whether a notification to the Company
would be required under Chapter 2 of Part IV of
the 1990 Act;
"Member" a member of the Company as defined in Section 31
of the 1963 Act;
"NASDAQ" the national association of securities dealers
automated quotation national market system;
"the Office" the registered office for the time being of the
Company;
"Ordinary Shares" Ordinary Shares of US$0.0027 each in the capital
of the Company;
"Preference Shares" Series B Preference Shares of US$0.0027 each in
the capital of the Company;
"the Register" the register of Members to be kept by the Company
as required by the Acts;
"the Seal" the common seal of the Company or (where
relevant) the official securities seal kept by the
Company pursuant to the Acts;
"the Secretary" any person appointed to perform the duties of the
Secretary of the Company;
17
"Shares" means any share of any class (whether issued or
unissued) in the capital of the Company;
"the State" the Republic of Ireland;
"The Stock NASDAQ, the Neuer Markt and any
Exchanges" other exchange in the State or elsewhere on
which Shares are listed from time to time;
"subsidiary" a subsidiary within the meaning of Section 155 of
the 1963 Act;
"Treasury Share" the meaning given to that expression by Section
209 of the 1990 Act;
"warrants to
subscribe" means a warrant or certificate or similar
document indicating the right of the registered
holder thereof (other than under a share option
scheme or schemes for employees, non-executive
directors or consultants) to subscribe for Shares
in the Company.
3 Expressions in these Articles referring to writing shall be construed,
unless the contrary intention appears, as including references to printing,
lithography, photography and any other modes of representing or reproducing
words in a visible form. Expressions in these Articles referring to
execution of any document shall include any mode of execution whether under
seal or under hand.
4 Unless specifically defined herein or the context otherwise requires, words
or expressions contained in these Articles shall bear the same meaning as
in the Acts but excluding any statutory modification thereof not in force
when these Articles become binding on the Company.
5 The headings and captions included in these Articles are inserted for
convenience of reference only and
18
shall not be considered a part of or affect the construction or
interpretation of these Articles.
6 References in these Articles to any enactment or any section or provision
thereof shall mean such enactment, section or provision as the same may be
amended and may be from time to time and for the time being in force.
7 In these Articles the masculine gender shall include the feminine and
neuter, and vice versa, and the singular number shall include the plural
and vice versa, and words importing persons shall include firms and
companies.
8 References in these Articles to pounds or xxxxx or IR(Pounds) or IRp shall
mean the currency, for the time being, of the State.
9. References in the Articles to dollars or cents or US$ shall mean the
currency, for the time being, of the United States of America.
Part II - Share Capital and Rights
2. Share Capital
The share capital of the Company is US$297,000 divided into:
1 100,000,000 Ordinary Shares of US$0.0027 each; and
2 10,000,000 Series B Preference Shares of US$0.0027 each;
all such shares to rank pari passu save to the extent that these Articles
make express provision to the Contrary.
3. Rights of Shares on issue
1 Without prejudice to any special rights previously conferred on the
Holders of any existing Shares or class of Shares and subject to the
provisions of the Acts, any Preference Share may be issued with such
rights or restrictions as the Board may from time to
19
time determine.
2 Without prejudice to the provisions of Article 3.1, and to any special
rights previously conferred on the Holders of any existing Shares or
class of Shares and subject to the provisions of the Acts, any Share
may be issued with such rights or restrictions as the Company may by
ordinary resolution determine.
4. Redeemable Shares
Subject to the provisions of the Acts, any Shares may be issued on the
terms that they are, or at the option of the Company are, liable to be
redeemed on such terms and in such manner as the Company may by special
resolution determine.
5. Variation of rights
1 Whenever the share capital is divided into different classes of
shares, the rights attached to any class may be varied or abrogated
with the consent in writing of the Holders of three-fourths in nominal
amount of the issued Shares of that class or with the sanction of a
special resolution passed at a separate general meeting of the Holders
of the Shares of the class (but not otherwise), and may be so varied
or abrogated either whilst the Company is a going concern or during or
in contemplation of a winding-up. The quorum at any such separate
general meeting, other than an adjourned meeting, shall be two persons
holding or representing by proxy at least one-third in nominal amount
of the issued Shares of the class in question and the quorum at an
adjourned meeting shall be one person holding Shares of the class in
question or his proxy.
2 The rights conferred upon the Holders of the Shares of any class
issued with preferred or other rights shall not, unless otherwise
expressly provided by these Articles or the terms of the issue of the
Shares of that class, be deemed to be varied by the creation or issue
of further Shares ranking pari passu therewith or subordinate thereto.
6. Trusts not recognised
20
Except as required by law, no person shall be recognised by the Company as
holding any Share upon any trust, and the Company shall not be bound by or
be compelled in anyway to recognise (even when having notice thereof) any
equitable, contingent, future or partial interest in any Share or any
interest in any fractional part of a Share or (except only as by these
Articles or by law otherwise provided) any other rights in respect of any
Share except an absolute right to the entirety thereof in the Holder.
7. Disclosure of Interests
1 For the purposes of this Article 7:-
"Deemed Voting Concert Party Interest" means an agreement or
arrangement between two or more persons with respect to, or to the
exercise of, voting rights attaching to Shares and which is likely to
result in those rights being exercised so as to influence or to
control the policy of the Company or the management of its affairs
which the Directors have deemed to be a Deemed Voting Concert Party
Interest for the purposes of this Article 7 and, where the Directors
so resolve, each of the persons who is party to such agreement or
arrangement shall be deemed (for the purposes of this Article 7) to be
interested in all the Shares to which the voting rights in question
are attached and, in this definition, references to an arrangement
include references to an understanding or mutual expectation, whether
formal or informal and whether or not legally binding.
"Disclosure Notice" means a notice served pursuant to Article 7.2
below;
"Interest" means an interest (of any size) in the Relevant Share
Capital which would be taken into account in deciding whether a
notification to the Company would be required under Chapter 2 of Part
IV of the 1990 Act but shall for all purposes include (the "Included
Interests") (i) rights to subscribe for or convert into, or
entitlements to acquire rights to subscribe for or convert into,
Shares which would on issue or conversion (as the case may be) be
comprised in the Relevant Share Capital; (ii) the interests referred
to in Section 78(l)(a), (c) and (g) of the 1990 Act except those of a
bare or custodian trustee and of a simple trustee and (iii)
21
any Deemed Voting Concert Party Interest; and "interested" shall be
construed accordingly;
"Relevant Share Capital" means the relevant share capital of the
Company (as that expression is defined in Section 67(2) of the 1990
Act);
"Share" means any Share comprised in Relevant Share Capital.
2 The Directors may by notice in writing require any Member, or
other person appearing to be interested or to have been
interested in Shares, to disclose to the Company in writing
such information as the Directors shall require relating to the
ownership of or any Interest in Shares as lies within the
knowledge of such Member or other person (supported if the
Directors so require by a statutory declaration and/or by
independent evidence) including (without prejudice to the
generality of the foregoing) any information which the Company
is entitled to seek pursuant to Section 81 of the 1990 Act.
3 The Directors may give any number of Disclosure Notices
pursuant to Article 7.2 above to the same Member or other
person in respect of the same Shares.
4 The Directors may serve notice pursuant to the terms of this
Article irrespective of whether or not the person on whom it
shall be served may be dead, bankrupt, insolvent or otherwise
incapacitated and no such incapacity or any unavailability of
information or inconvenience or hardship in obtaining the same
shall be a satisfactory reason for failure to comply with any
such notice, provided that if the Directors in their absolute
discretion think fit, they may waive compliance in whole or in
part with any notice given under this Article in respect of a
Share in any case of bona fide unavailability of information or
genuine hardship or where they otherwise think fit but no such
waiver shall prejudice or affect in any way any non-compliance
not so waived whether by the person concerned or any other
person appearing to the Directors to be interested in the
Shares or by any person to whom a notice may be given at any
time.
22
5 The provisions of Articles 124 to 130 inclusive shall apply to the
service of notices required by this Article to be served.
6 Any resolution or determination of, or decision or exercise of any
discretion or power by the Directors under or pursuant to the
provisions of this Article shall be final and conclusive and things
done by or on behalf of, or on the authority of, the Directors
pursuant to the foregoing provisions of this Article shall be
conclusive and binding on all persons concerned and shall not be
open to challenge, whether as to validity or otherwise on any ground
whatsoever. The Directors shall not be required to give any reasons
for any decision, determination or declaration taken or made in
accordance with this Article.
7 The provisions of this Article are in addition to, and do not limit,
any other right or power of the Company or the Directors, including
any right vested in the Company or the Directors by the Acts.
8. Allotment of Shares
1 The unissued Shares shall be at the disposal of the Directors and
(subject to the provisions of these Articles, the Acts and of any
resolution of the Company in general meeting passed pursuant thereto)
they may allot, grant options over, deal with or otherwise dispose
(with or without conferring a right of renunciation) of them on such
terms and conditions and at such times as they may consider to be in
the best interests of the Company and the Members but so that no Share
shall be issued at a discount and so that, where Shares are to be
allotted and issued, the amount payable on application on each Share
shall not be less than one-quarter of the nominal amount of the Share
and the whole of any premium payable thereon.
2 Without prejudice to the generality of the powers conferred on the
Directors by the other provisions of this Article, the Directors may
grant from time to time options to subscribe for unallotted Shares in
the capital of the Company to persons in the service or employment of
or Directors or consultants of the Company or any subsidiary of the
Company on such terms and subject to such conditions as may be
approved from time to time by the Directors or any
23
committee thereof appointed by the Directors for the purpose of such
approval.
3 The Company may issue warrants to subscribe (by whatever name they are
called) to any person to whom the Company has granted the right to
subscribe for Shares in the Company (other than under a share option
scheme for employees) certifying the right of the registered holder
thereof to subscribe for Shares in the Company upon such terms and
conditions as those upon which the right may have been granted.
4 The Directors are generally and unconditionally authorised to exercise
all powers of the Company to allot relevant securities (as defined for
the purposes of Section 20 of the 1983 Act) up to an amount equal to
the authorised but unissued share capital of the Company at the date
hereof, provided that this authority will expire on 26th July, 2005,
save that the Company may before such expiry make an offer or
agreement which would or might require relevant securities to be
allotted after such expiry and the Directors may allot relevant
securities in pursuance of such offer or agreement as if the authority
conferred hereby had not expired. The pre-emption provisions of sub-
section (1), of Section 23 of the 1983 Act shall not apply to any
allotment by the Company of equity securities (within the meaning of
the said section 23).
9. Payment of commission
The Company may exercise the powers of paying commissions conferred or
permitted by the Acts. Subject to the provisions of the Acts, any such
commission may be satisfied by the payment of cash or by the allotment of
fully or partly paid Shares or partly in one way and partly in the other.
On any issue of Shares the Company may also pay such brokerage as may be
lawful.
10. Payment by installments
If by the conditions of allotment of any Share the whole or part of the
amount or issue price thereof shall be payable by installments, every such
installment when due shall be paid to the Company by the person who for the
time being shall be the Holder of the Share.
24
Part III - Share Certificates
11. Issue of certificates
Every Member shall be entitled without payment to receive within two months
after allotment or lodgment of a transfer to him of the Shares in respect
of which he is so registered (or within such other period as the conditions
of issue shall provide) one certificate for all the Shares of each class
held by him or several certificates each for one or more of his Shares upon
payment for every certificate after the first of such reasonable out of
pocket expenses as the Directors may determine provided that the Company
shall not be bound to issue more than one certificate for Shares held
jointly by several persons and delivery of a certificate to one joint
Holder shall be a sufficient delivery to all of them. The Company shall not
be bound to register more than four persons as joint Holders of any Share
(except in the case of executors or trustees of a deceased Member). Every
certificate shall be sealed with the Seal and shall specify the number,
class and distinguishing number (if any) of the Shares to which it relates
and the amount or respective amounts paid up thereon.
12. Balance and exchange certificates
1 Where some only of the Shares comprised in a share certificate are
transferred the old certificate shall be cancelled and the new
certificate for the balance of such Shares shall be issued in lieu
without charge.
2 Any two or more certificates representing Shares of any one class held
by any Member at his request may be cancelled and a single new
certificate for such Shares issued in lieu, without charge unless the
Directors otherwise determine. If any Member shall surrender for
cancellation a share certificate representing shares held by him and
request the Company to issue in lieu two or more Share certificates
representing such Shares in such proportions as he may specify, the
Directors may comply, if they think fit, with such request, subject to
the payment by him of such charge as may be determined by the
Directors.
25
13. Replacement of certificates
1 If a share certificate is defaced, worn out, lost, stolen or
destroyed, it may be replaced on such terms (if any) as to evidence
and indemnity and payment of any exceptional expenses incurred by the
Company as the Directors may determine but otherwise free of charge,
and (in the case of defacement or wearing out) on delivery up of the
old certificate.
2 In the case of Shares, held jointly by several persons any request
under Articles 12 or 13 may be made by any one of the joint Holders.
Part IV - Lien on Shares
14. Extent of lien
The Company shall have a first and paramount lien on every Share (not being
a fully paid Share) for all moneys (whether presently payable or not)
payable at a fixed time or called in respect of that Share. The Directors,
at any time, may declare any Share to be wholly or in part exempt from the
provisions of this Article. The Company's lien on a Share shall extend to
all moneys payable in respect of it.
15. Power of sale
The Company may sell in such manner as the Directors determine any Share on
which the Company has a lien if a sum in respect of which the lien exists
is presently payable and is not paid within fourteen Clear Days after
notice demanding payment, and stating that if the notice is not complied
with the Shares may be sold, has been given to the Holder of the Share or
to the person entitled to it by reason of the death or bankruptcy of the
Holder.
16. Power to effect transfer
To give effect to a sale the Directors may take such steps as the Directors
consider are necessary or desirable in order to effect such sale and, for
this purpose, may authorise some person to execute an instrument of
transfer of the Shares sold to, or in
26
accordance with the directions of, the purchaser. The transferee shall be
entered in the Register as the Holder of the Shares comprised in any such
transfer and he shall not be bound to see to the application of the
purchase moneys nor shall his title to the Shares be affected by any
irregularity in or invalidity of the proceedings in reference to the sale,
and after the name of the transferee has been entered in the Register, the
remedy of any person aggrieved by the sale shall be in damages only and
against the Company exclusively.
17. Proceeds of sale
The net proceeds of the sale, after payment of the costs relating thereto,
shall be applied in payment of so much of the sum for which the lien exists
as is presently payable and any residue (upon surrender to the Company for
cancellation of the certificate for the Shares sold or an indemnity in a
form which is satisfactory to the Directors and subject to a like lien for
any moneys not presently payable as existed upon the Shares before the
sale) shall be paid to the person entitled to the Shares at the date of the
sale.
Part V - Calls on Shares and Forfeiture
18. Making of calls
Subject to the terms of allotment, the Directors may make calls upon the
Members in respect of any moneys unpaid on their Shares and each Member
(subject to receiving at least fourteen Clear Days' notice specifying when
and where payment is to be made) shall pay to the Company as required by
the notice the amount called on his Shares. A call may be required to be
paid by installments. A call may be revoked before receipt by the Company
of a sum due thereunder, in whole or in part, and payment of a call may be
postponed in whole or in part. A person upon whom a call is made shall
remain liable for such call notwithstanding the subsequent transfer of the
Shares in respect of which the call was made.
19. Time of call
A call shall be deemed to have been made at the time when the resolution of
the Directors authorising the call was passed.
27
20. Liability of joint Holders
The joint Holders of a Share shall be jointly and severally liable to pay
all calls in respect thereof.
21. Interest on calls
If a call remains unpaid after it has become due and payable the person
from whom it is due and payable shall pay interest on the amount unpaid
from the day it became due until it is paid at the rate fixed by the terms
of allotment of the Share or in the notice of the call but the Directors
may waive payment of the interest wholly or in part.
22. Xxxxxxx treated as calls
An amount payable in respect of a Share on allotment or at any fixed date,
whether in respect of nominal value or by way of premium, shall be deemed
to be a call and if it is not paid the provisions of these Articles shall
apply as if that amount had become due and payable by virtue of a call duly
made and notified.
23. Power to differentiate
Subject to the terms of allotment, the Directors may make arrangements on
the issue of Shares for different terms to apply as between the Holders in
relation to the amounts and times of payment of calls on their Shares.
24. Interest on moneys advanced
The Directors, if they think fit, may receive from any Member willing to
advance same all or any part of the moneys uncalled and unpaid upon any
Shares held by him, and upon all or any of the moneys so advanced may pay
(until the same would, but for such advance, become payable) interest at
such rate, not exceeding (unless the Company in general meeting otherwise
directs) 15 per cent per annum, as may be agreed upon between the Directors
and the Member paying such sum in advance, but any sum paid in excess of
the amount for the time being called up shall not be included or taken into
account in
28
ascertaining the amount of the dividend payable on the Shares in respect of
which such advance has been made.
25. Notice requiring payment
1 If a Member fails to pay any call or installment of a call on the day
appointed for payment thereof, the Directors, at any time thereafter
during such times as any part of the call or installment remains
unpaid, may serve a notice on him requiring payment of so much of the
call or installment as is unpaid together with any interest which may
have accrued.
2 The notice shall name a further day (not earlier than the expiration
of fourteen Clear Days from the date of service of the notice) on or
before which the payment required by the notice is to be made, and
shall state that in the event of non-payment at or before the time
appointed the Shares in respect of which the call was made will be
liable to be forfeited.
3 If the requirements of any such notice as aforesaid are not complied
with then, at any time thereafter before the payment required by the
notice has been made, any Shares in respect of which the notice has
been given may be forfeited by a resolution of the Directors to that
effect. The forfeiture shall include all dividends or other moneys
payable in respect of the forfeited Shares and not paid before
forfeiture. The Directors may accept a surrender of any Share liable
to be forfeited hereunder.
4 On the trial or hearing of any action for the recovery of any money
due for any call it shall be sufficient to prove that the name of the
Member sued is entered in the Register as the Holder, or one of the
Holders, of the Shares in respect of which such debt accrued, that the
resolution making the call is duly recorded in the minute book and
that notice of such call was duly given to the Member sued, in
accordance with these Articles, and it shall not be necessary to prove
the appointment of the Directors who made such call nor any other
matters whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
26. Power of disposal
29
A forfeited Share may be sold or otherwise disposed of on such terms and in
such manner as the Directors think fit and at any time before a sale or
disposal the forfeiture may be cancelled on such terms as the Directors
think fit. Where for the purposes of its disposal such a Share is to be
transferred to any person, the Directors may take such steps as the
Directors consider are necessary or desirable in order to effect such sale
and, for this purpose, may authorise some person to execute an instrument
of transfer of the Share to that person. The Company may receive the
consideration, if any, given for the Share on any sale or disposal thereof
and may execute a transfer of the Share in favour of the person to whom the
Share is sold or disposed of and thereupon he shall be registered as the
Holder of the Share and shall not be bound to see to the application of the
purchase moneys, nor shall his title to the Share be affected by any
irregularity or invalidity in the proceedings in reference to the
forfeiture, sale or disposal of the Share and after the name of the
transferee has been entered in the Register the remedy of any person
aggrieved by the sale shall be in damages only and against the Company
exclusively.
27. Effect of forfeiture
A person whose Shares have been forfeited shall cease to be a Member in
respect of the forfeited Shares, but nevertheless shall remain liable to
pay to the Company all moneys which, at the date of forfeiture, were
payable by him to the Company in respect of the Shares, 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. The Directors may, at their
absolute discretion, 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.
28. Statutory declaration
A statutory declaration that the declarant is a Director or the Secretary
of the Company, and that a Share in the Company has been duly forfeited on
the date stated in the declaration, shall be conclusive evidence of the
facts therein stated as against all persons claiming to be entitled to the
Share.
30
29. Non-payment of sums due on Share issues
The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum which, by the terms of issue of a Share, becomes
payable at a fixed time, whether on account of the nominal value of the
Share or by way of premium, as if the same had been payable by virtue of a
call duly made and notified.
Part VI - Conversion of Shares into Stock
30. Conversion of Shares into stock
The Company by ordinary resolution may convert any paid up Shares into
stock and reconvert any stock into paid up Shares of any denomination.
31. Transfer of stock
The 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 have been transferred before
conversion, or as near thereto as circumstances admit; and the Directors
may fix from time to time the minimum amount of stock transferable but so
that such minimum shall not exceed the nominal amount of each Share from
which the stock arose.
32. Rights of stockholders
1 The holders of stock shall have, according to the amount of stock held
by them, the same rights, privileges and advantages in relation to
dividends, voting at meetings of the Company and other matters as if
they held the Shares from which the stock arose, but no such right,
privilege or advantage (except participation in the dividends and
profits of the Company and in the assets on winding up) shall be
conferred by an amount of stock which, if existing in Shares, would
not have conferred that right, privilege or advantage.
2 Such of these Articles as are applicable to paid up Shares shall apply
to stock, and the words "Share"
31
and "Holder" or "Member" therein shall include "stock" and
"stockholder".
Part VII - Transfer of Shares
33. Form of instrument of transfer
Subject to such of the restrictions of these Articles and to such of the
conditions of issue or transfer as may be applicable, the Shares of any
Member may be transferred by instrument in writing in any usual or common
form or any other form which the Directors may approve.
34. Execution of instrument of transfer
The instrument of transfer of any Share shall be executed by or on behalf
of the transferor and, in cases where the Share is not fully paid, by or on
behalf of the transferee. 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.
35. Refusal to register transfers
1 The Directors in their absolute discretion and without assigning any
reason therefor may decline to register any transfer of a Share which
is not fully paid save and however, that in the case of such a Share
which is admitted to listing on any of The Stock Exchanges such
restriction shall not operate so as to prevent dealings in such a
Share of the Company from taking place on an open and proper basis.
2 The Directors may decline to recognise any instrument of transfer
unless:-
(a) the instrument of transfer is accompanied by the certificate of
the Shares to which it relates and such other evidence as the
Directors may reasonably require to show the right of the
transferor to make the transfer;
(b) the instrument of transfer is in respect of one class of Share
only;
(c) the instrument of transfer is in favour of not more than four
transferees; and
32
(d) it is lodged at the Office or at such other place as the
Directors may appoint.
3 In the case of a transfer of Shares in certificated form by a
recognised clearing house or a nominee thereof or a recognised
investment exchange, the lodgement of share certificates will only be
necessary if and to the extent that certificates have been issued in
respect of the Shares in question.
36. Procedure on refusal
If the Directors refuse to register a transfer then, within two months
after the date on which the transfer was lodged with the Company, they
shall send to the transferee notice of the refusal.
37. Closing of transfer books
The registration of transfers of Shares either generally or in respect of
any class of Shares may be suspended at such times and for such periods
(not exceeding thirty days in each year) as the Directors may determine.
38. Absence of registration fees
No fee shall be charged for the registration of any instrument of transfer
or other document relating to or affecting the title to any Share.
39. Retention of transfer instruments
The Company shall be entitled to retain any instrument of transfer which is
registered, but any instrument of transfer which the Directors refuse to
register shall be returned to the person lodging it when notice of the
refusal is given.
40. Renunciation of allotment
Nothing in these Articles shall preclude the Directors from recognising a
renunciation of the allotment of any Shares by the allottee in favour of
some other person.
33
Part VIII - Transmission of Shares
41. Death of Member
If a Member dies the survivor or survivors where he was a joint Holder, and
his personal representatives where he was a sole Holder or the only
survivor of joint Holders, shall be the only persons recognised by the
Company as having any title to his interest in the Shares; but nothing
herein contained shall release the estate of a deceased Member from any
liability (whether sole or joint) in respect of any Share which had been
held by him.
42. Transmission on death or bankruptcy
A person becoming entitled to a Share in consequence of the death or
bankruptcy of a Member or otherwise by operation of law may elect, upon
such evidence being produced as the Directors may properly require, either
to become the Holder of the Share or to have some person nominated by him
registered as the transferee. If he elects to become the Holder he shall
give notice to the Company to that effect. If he elects to have another
person registered he shall execute an instrument of transfer of the Share
to that person. All of the provisions of these Articles relating to the
transfer of Shares shall apply to the notice or instrument of transfer as
if it were an instrument of transfer executed by the Member and the death
or bankruptcy of the Member had not occurred.
43. Rights before registration
A person becoming entitled to a Share by reason of the death or bankruptcy
of a Member (or otherwise by operation of law) (upon supplying to the
Company such evidence as the Directors may reasonably require to show his
title to the Share) shall (notwithstanding that he is not entered on the
Register as the holder of the Share) have the rights to which he would be
entitled if he were the Holder of the Share, except that, before being
registered as the Holder of the Share, he shall not be entitled in respect
of it to attend or vote at any meeting of the Company or at any separate
meeting of the
34
Holders of any class of Shares in the Company, so, however, that the
Directors, at any time, may give notice requiring any such person to elect
either to be registered himself or to transfer the Share and, if the notice
is not complied with within ninety days, the Directors thereupon may
withhold payment of all dividends, bonuses or other moneys payable in
respect of the Share until the requirements of the notice have been
complied with.
Part IX - Alteration of Share Capital
44. Increase of capital
1 The Company from time to time by ordinary resolution may increase the
share capital by such sum, to be divided into Shares of such amount,
as the resolution shall prescribe.
2 Subject to the provisions of the Acts, the new Shares shall be issued
to such persons, upon such terms and conditions and with such rights
and privileges annexed thereto as the general meeting resolving upon
the creation thereof shall direct and, if no direction be given, as
the Directors shall determine and in particular such Shares may be
issued with a preferential or qualified right to dividends and in the
distribution of the assets of the Company and with a special, or
without any, right of voting.
3 Except so far as otherwise provided by the conditions of issue or by
these Articles, any capital raised by the creation of new Shares shall
be considered part of the pre-existing ordinary capital and shall be
subject to the provisions herein contained with reference to calls and
installments, transfer and transmission, forfeiture, lien and
otherwise.
45. Consolidation, sub-division and cancellation of capital
The Company, by ordinary resolution, may:-
1 consolidate and divide all or any of its share capital into Shares of
larger amount;
35
2 subject to the provisions of the Acts, subdivide its Shares, or any of
them, into Shares of smaller amount, so however that 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 so that
the resolution whereby any Share is sub-divided may determine that, as
between the Holders of the Shares resulting from such sub-division,
one or more of the Shares may have, as compared with the others, any
such preferred, deferred or other rights or be subject to any such
restrictions as the Company has power to attach to unissued or new
Shares); or
3 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 reduce the
amount of its authorised share capital by the amount of the Shares so
cancelled.
46. Fractions on consolidation
Subject to the provisions of these Articles, whenever as a result of a
consolidation of Shares any Members would become entitled to fractions of a
Share, the Directors may sell, on behalf of those Members, the Shares
representing the fraction for the best price reasonably obtainable to any
person (including, subject to this provisions the Acts, the Company)and
distribute the proceeds of sale in due proportion among those Members,
(save that the Directors may in any such case determine that amounts of
US$5 or less shall not be distributed but shall be retained for the benefit
of the Company) and the Directors may take such steps as the Directors
consider are necessary or desirable in order to effect such sale and, for
this purpose, may authorise any person to execute an instrument of transfer
of the Shares to, or in accordance with the directions of, the purchaser.
The transferee shall not be bound to see to the application of the purchase
money nor shall his title to the Shares be affected by any irregularity in
or invalidity of the proceedings in reference to the sale. So far as the
Acts allow, the Directors may treat shares of a member in certificated form
and in uncertificated form as separate holdings in giving effect to sub-
divisions and/or consolidations and may cause any shares arising on
consolidation or sub-division and representing fractional entitlements to
be entered in the Register as shares in
36
certificated form where this is desirable to facilitate the sale thereof.
47. Reduction of capital
The Company, by special resolution, may reduce its share capital, any
capital redemption reserve fund or any share premium account in any manner
and with, and subject to, any incident authorised, and consent required, by
law.
48. Purchase of own Shares
Subject to the provisions of the Acts and to any rights conferred on the
Holders of any class of Shares, the Company (or any subsidiary) may
purchase all or any of its Shares of any class (including any redeemable
Shares). Every contract for the purchase of, or under which the Company
may become entitled or obliged to purchase, Shares in the Company shall be
authorised by a special resolution of the Company. Neither the Company nor
the Directors shall be required to select the Shares to be purchased
rateably or in any particular manner as between the Holders of Shares of
the same class or as between them and the Holders of Shares of any other
class or in accordance with the rights as to dividends or capital conferred
by any class of Shares. Subject as aforesaid, the Company may cancel any
Shares so purchased or may hold them as Treasury Shares and issue any such
Treasury Shares as Shares of any class or classes or cancel them.
Notwithstanding anything to the contrary contained in these Articles, the
rights attached to any class of Shares shall be deemed not to be varied by
anything done by the Company pursuant to this Article.
Part X - General Meetings
49. Annual general meetings
The Company shall hold in each year a general meeting as its annual general
meeting in addition to any other meeting in that year and shall specify the
meeting as such in the notices calling it. Not more than fifteen months
shall elapse between the date of one annual general meeting and that of the
next.
37
50. Extraordinary general meetings
All general meetings other than annual general meetings shall be called
extraordinary general meetings.
51. Convening general meetings
The Directors may convene general meetings. Extraordinary general meetings
may also be convened by the Directors on such requisition, or in the event
of default by the Directors may be convened by such requisitionists and in
such manner, as may be provided by the Acts. If at any time there are not
within the State sufficient Directors capable of acting to form a quorum,
any Director or any two Members of the Company may convene an extraordinary
general meeting in the same manner as nearly as possible as that in which
general meetings may be convened by the Directors.
52. Notice of general meetings
1 Subject to the provisions of the Acts allowing a general meeting to be
called by shorter notice, an annual general meeting and an
extraordinary general meeting called for the passing of a special
resolution shall be called by at least twenty-one Clear Days' notice
and all other extraordinary general meetings shall be called by at
least fourteen Clear Days' notice.
2 Any notice convening a general meeting shall specify the time, date
and place of the meeting and, in the case of special business, the
general nature of that business and, in reasonable prominence, that a
Member entitled to attend and vote is entitled to appoint a proxy to
attend, speak and vote in his place and that a proxy need not be a
Member of the Company. The notice shall specify the general nature of
the business to be transacted at the meeting; and if any resolution is
to be proposed as a Special Resolution, then notice shall contain a
statement to that effect. In the case of an Annual General Meeting,
the notice shall also specify the meeting as such. It shall also give
particulars of any Directors who are to retire by rotation or
otherwise at the meeting and of any persons who are recommended by the
Directors for appointment or re-appointment as Directors at the
meeting, or in respect of whom notice has been duly given to the
38
Company of the intention to propose them for appointment or re-
appointment as Directors at the meeting. Subject to any restrictions
imposed on any Shares, the notice shall be given to all the Members
and to the Directors and the Auditors.
3 The accidental omission to give notice of a meeting to, or the non-
receipt of notice of a meeting or other documentation relating to a
meeting by, any person entitled to receive notice shall not invalidate
the proceedings at the meeting.
4 Where, by any provision contained in the Acts, extended notice is
required of a resolution, the resolution shall not be effective
(except where the Directors of the Company have resolved to submit it)
unless notice of the intention to move it has been given to the
Company not less than such number of days as the Acts permit before
the meeting at which it is moved, and the Company shall give to the
Members notice of any such resolution as required by and in accordance
with the provisions of the Acts.
5 The Directors may, for the purpose of controlling the level of
attendance at any place specified for the holding of a general
meeting, from time to time make such arrangements whether involving
the issue of tickets (on a basis intended to afford to all Members
otherwise entitled to attend such meeting an equal opportunity of
being admitted to the meeting) or the imposition of some random means
of selection or otherwise as they shall in their absolute discretion
consider to be appropriate, and may from time to time vary any such
arrangements or make new arrangements in place therefor and the
entitlement of any Member or proxy to attend a general meeting at such
place shall be subject to any such arrangements as may be for the time
being in force and by the notice of meeting stated to apply to that
meeting. In the case of any general meeting to which such arrangements
apply the Directors shall, and in the case of any other general
meeting the Directors may, when specifying the place of the general
meeting, direct that the meeting shall be held at a place specified in
the notice at which the chairman of the meeting shall preside ("the
Principal Place") and make arrangements for simultaneous attendance
and participation at other places by members otherwise entitled to
attend the general meeting but excluded therefrom under the provisions
of this Article or who wish to attend at
39
any of such other places provided that persons attending at the
Principal Place and at any of such other places shall be able to see
and hear and be seen and heard by persons attending at the Principal
Place and at such other places. Such arrangements for simultaneous
attendance may include arrangements for controlling the level of
attendance in any manner aforesaid at such other places provided that
they shall operate so that any such excluded members as aforesaid are
able to attend at one of such other places. For the purposes of all
other provisions of these Articles any such meeting shall be treated
as being held and taking place at the Principal Place.
Part XI - Proceedings at General Meetings
53. Quorum for general meetings
1 No business other than the appointment of a chairman shall be
transacted at any general meeting unless a quorum of Members is
present at the time when the meeting proceeds to business. Except as
provided in relation to an adjourned meeting, three Members entitled
to vote upon the business to be transacted and together holding not
less than one third of the voting share capital of the Company in
issue, present in person or by proxy, entitled to vote upon the
business to be transacted, shall be a quorum.
2 If such a quorum is not present within half an hour from the time
appointed for the meeting, or if during a meeting a quorum ceases to
be present, the meeting shall stand adjourned to the same day in the
next week at the same time and place, or to such time and place as the
Directors may determine. If at the adjourned meeting such a quorum is
not present within half an hour from the time appointed for the
meeting, the meeting, if convened otherwise than by resolution of the
Directors, shall be dissolved, but if the meeting shall have been
convened by resolution of the Directors, two persons entitled to be
counted in a quorum present at the meeting shall be a quorum.
54. Special business
All business shall be deemed special that is transacted at an extraordinary
general meeting. All business that is transacted at an annual general
meeting shall also be deemed special with the exception of declaring a
40
dividend, the consideration of the accounts, balance sheets and reports of
the Directors and Auditors, the election of Directors in the place of those
retiring (whether by rotation or otherwise), the fixing of the remuneration
of the Directors, the re-appointment of the retiring Auditors and the
fixing of the remuneration of the Auditors.
55. Chairman of general meetings
1 The chairman of the board of Directors or in his absence, the deputy
chairman (if any) or in his absence, some other Director nominated by
the Directors shall preside as chairman at every general meeting of
the Company. If at any general meeting none of such persons shall be
present within fifteen minutes after the time appointed for the
holding of the meeting and willing to act, the Directors present shall
elect one of their number to be chairman of the meeting and, if there
is only one Director present and willing to act, he shall be chairman.
2 If at any meeting no Director is willing to act as chairman or if no
Director is present within fifteen minutes after the time appointed
for holding the meeting, the Members present and entitled to vote
shall choose one of the Members personally present to be chairman of
the meeting.
56. Directors' and Auditors' right to attend general meetings
A Director shall be entitled, notwithstanding that he is not a Member, to
attend and speak at any general meeting and at any separate meeting of the
Holders of any class of Shares in the Company. The Auditors shall be
entitled to attend any general meeting and to be heard on any part of the
business of the meeting which concerns them as the Auditors.
57. Adjournment of general meetings
The Chairman, with the consent of a meeting at which a quorum is present,
may (and if so directed by the meeting, shall) adjourn the meeting from
time to time (or sine die) and from place to place, but no business shall
be transacted at any adjourned meeting other than business which might
properly have been transacted at the
41
meeting had the adjournment not taken place. Where a meeting is adjourned
sine die, the time and place for the adjourned meeting shall be fixed by
the Directors. When a meeting is adjourned for fourteen days or more or
sine die, at least seven Clear Days' notice shall be given, in the same
manner as it was given for the meeting, specifying the time and place of
the adjourned meeting and the general nature of the business to be
transacted. Save as aforesaid it shall not be necessary to give any notice
of an adjourned meeting.
58. Determination of resolutions
At any general meeting a resolution put to the vote of the meeting shall be
decided on a show of hands unless before, or on the declaration of the
result of, the show of hands a poll is duly demanded. Unless a poll is so
demanded a declaration by the Chairman that a resolution has been carried
or carried unanimously, or by a particular majority, or lost, or not
carried by a particular majority and an entry to that effect in the minutes
of the meeting shall be conclusive evidence of the fact without proof of
the number or proportion of the votes recorded in favour of or against the
resolution. The demand for a poll may be withdrawn before the poll is
taken but only with the consent of the Chairman, and a demand so withdrawn
shall not be taken to have invalidated the result of a show of hands
declared before the demand was made.
59. Amendments to resolutions
If 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.
60. Entitlement to demand poll
Subject to the provisions of the Acts, a poll may be demanded:-
1 by the chairman of the meeting;
2 by at least three Members present (in person or by proxy) having the
right to attend and vote at the meeting;
42
3 by any Member or Members present (in person or by proxy) representing
in aggregate not less than one-tenth of the total voting rights of all
the Members having the right to attend and vote at the meeting; or
4 by a Member or Members present (in person or by proxy) holding Shares
in the Company conferring the right to attend and vote at the meeting
being Shares on which an aggregate sum has been paid up equal to not
less than one-tenth of the total sum paid up on all the Shares
conferring that right.
61. Taking of a poll
1 Save as provided in Article 61.2, a poll shall be taken in such manner
as the chairman of the meeting directs and he may appoint scrutineers
(who need not be Members) and fix a time and place for declaring the
result of the poll. The result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded.
2 A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other
question shall be taken either forthwith or at such time (not being
more than thirty days after the poll is demanded) and place as the
chairman of the meeting may direct. The demand for a poll shall not
prevent the continuance of a meeting for the transaction of any
business other than the question on which the poll was demanded. If a
poll is demanded before the declaration of the result of a show of
hands and the demand is duly withdrawn, the meeting shall continue as
if the demand had not been made.
3 No notice need be given of a poll not taken forthwith if the time and
place at which it is to be taken are announced at the meeting at which
it is demanded. In any other case at least seven Clear Days' notice
shall be given specifying the time and place at which the poll is to
be taken.
62. Votes of Members
Votes may be given either personally or by proxy. Subject to any rights or
restrictions for the time being
43
attached to any class or classes of Shares, on a show of hands every Member
present in person and every proxy shall have one vote, so, however, that no
individual shall have more than one vote, and on a poll every Member shall
have one vote for every Share carrying voting rights of which he is the
Holder.
63. Chairman's casting vote
Where there is an equality of votes, whether on a show of hands or on a
poll the chairman of the meeting at which the show of hands takes place or
at which the poll is demanded shall be entitled to a casting vote in
addition to any other vote he may have.
64. Voting by joint Holders
Where there are joint Holders of a Share, the vote of the senior who
tenders a vote, whether in person or by proxy, in respect of such Share
shall be accepted to the exclusion of the votes of the other joint Holders;
and for this purpose seniority shall be determined by the order in which
the names of the Holders stand in the Register in respect of the Share.
65. Voting by incapacitated Holders
A Member of unsound mind, or in respect of whom an order has been made by
any court having jurisdiction (whether in the State or elsewhere) in
matters concerning mental disorder, may vote, whether on a show of hands or
on a poll, by his committee, receiver, guardian or other person appointed
by that court and any such committee, receiver, guardian or other person
may vote by proxy on a show of hands or on a poll.
Evidence to the satisfaction of the Directors of the authority of the
person claiming to exercise the right to vote pursuant to this Article
shall be deposited at the Office or at such other place as is specified in
accordance with these Articles for the deposit of instruments of proxy, not
less than forty-eight hours before the time appointed for holding the
meeting or adjourned meeting at which the right to vote is to be exercised
and in default the right to vote shall not be exercisable.
44
66. Default in payment of calls
Unless the Directors otherwise determine, no Member shall be entitled to
vote at any general meeting or any separate meeting of the Holders of any
class of Shares in the Company, either in person or by proxy, or to
exercise any privilege as a Member in respect of any Share held by him
unless all moneys then payable by him in respect of that Share have been
paid.
67. Restriction of voting and other rights
1 If at any time the Directors shall determine that a Specified Event
(as defined in Article 67.8) shall have occurred in relation to any
Share or Shares the Directors may serve a notice to such effect on the
Holder or Holders thereof. Upon the expiry of a period of 14 days
following the service of any such notice (in these Articles referred
to as a "Restriction Notice") and for so long as such Restriction
Notice shall remain in force, no Holder or Holders of the Share or
Shares specified in such Restriction Notice ("the Relevant Shares")
shall be entitled to attend or vote at any general meeting, or at any
separate general meeting of the class of Shares concerned either
personally or by proxy in respect of such Relevant Shares; and the
Directors shall, where the Restricted Shares represent not less than
0.25 per cent of the total number of issued Shares of the same class
of Shares as the Relevant Shares, be entitled:
(a) to withhold payment of any dividend or other amount payable in
respect of the Relevant Shares without any liability to pay
interest thereon when such money is paid to the Member; and/or
(b) to refuse to register any transfer of the Relevant Shares (other
than a transfer made as part of a sale to a bona fide unconnected
third party where evidence satisfactory to the Directors that
such is the case has been provided to the Directors upon a
request being made by them in writing to the Holder or Holders of
the Relevant Shares) or any renunciation of or any allotment of
new Shares or debentures made in respect thereof.
45
2 A Restriction Notice shall be cancelled by the Directors as soon as
reasonably practicable, but in any event not later than seven days
after the Holder or Holders concerned or any other relevant person
shall have remedied the default by virtue of which the Specified Event
shall have occurred, and a Restriction Notice given in respect of any
Relevant Shares as a result of a Specified Event described in Article
67.8(b) shall automatically be deemed to be cancelled upon receipt by
the Directors of evidence satisfactory to them that the Relevant
Shares have been sold on a transfer to a bona fide third party
unconnected with the Holder;
3 A Restriction Notice shall automatically cease to have effect in
respect of any Share transferred upon registration of the relevant
transfer provided that a Restriction Notice shall not cease to have
effect in respect of any transfer where no change in the beneficial
ownership of the Share shall occur and for this purpose it shall be
assumed that no such change has occurred where a transfer form in
respect of the Share is presented for registration having been stamped
at a reduced rate of stamp duty by virtue of the transferor or
transferee claiming to be entitled to such reduced rate as a result of
the transfer being one where no beneficial interest passes.
4 The Directors shall cause a notation to be made in the Register
against the name of any Holder or Holders in respect of whom a
Restriction Notice shall have been served indicating the number of
Shares specified in such Restriction Notice and shall cause such
notation to be deleted upon cancellation or cesser of such Restriction
Notice.
5 Where dividends or other payments are not paid as a result of
restrictions imposed on Relevant Shares, such dividends or other
payments shall accrue and shall be payable (without interest) upon the
cancellation of the Restriction Notice.
6 Any determination of the Directors and any notice or request served by
them pursuant to the provisions of this Article shall be conclusive as
against the Holder or Holders of any Share and the validity of any
notice or request served by the Directors in pursuance of this Article
shall not be questioned by any person.
46
7 If, while any Restriction Notice shall remain in force in respect of
any Holder or Holders of any Shares, such Holder or Holders shall be
issued with any further Shares as a result of such Holder or Holders
not renouncing any allotment of Shares made to him or them pursuant to
a capitalisation issue under Articles 121 to 123, the Restriction
Notice shall be deemed also to apply to such Holder or Holders in
respect of such further Shares on the same terms and conditions as
were applicable to the said Holder or Holders immediately prior to
such issue of further Shares.
8 For the purpose of these Articles the expression "Specified Event" in
relation to any Share shall mean either of the following events:-
(a) the failure by the Holder or Holders thereof to pay any call or
installment of a call in the manner and at the time appointed for
payment thereof; or
(b) the failure by the Holder thereof or any of the Holders thereof
or any other relevant person to comply, to the satisfaction of
the Directors, with all or any of the terms of Section 81 of the
1990 Act and/or Article 7 in respect of any notice or notices
given to him or any of them thereunder.
68. Time for objection to voting
No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting at which the vote objected to is tendered
and every vote not disallowed at such meeting shall be valid. Any such
objection made in due time shall be referred to the chairman of the meeting
whose decision shall be final and conclusive.
69. Appointment of proxy
Every Member entitled to attend and vote at a general meeting may appoint a
proxy to attend, speak and vote on his behalf. The instrument appointing a
proxy shall be in writing in any usual form or in any other form which the
Directors may approve and shall be executed by or on behalf of the
appointor or his duly authorised attorney.
47
The signature on such instrument need not be witnessed. A body corporate
may execute a form of proxy under its common seal or under the hand of a
duly authorised officer thereof. A proxy need not be a Member of the
Company. No instrument of proxy shall be valid after twelve months have
elapsed from the date named in it as the date of its execution.
70. Bodies corporate acting by representatives at meetings
Any body corporate 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 authorised shall be
entitled to exercise the same powers on behalf of the body corporate which
he represents as that body corporate could exercise if it were an
individual Member of the Company.
71. Deposit of proxy instruments
The instrument appointing a proxy and any authority under which it is
executed or a copy of such authority, certified notarially or in some other
way approved by the Directors, shall be deposited at the Office or (at the
option of the Member) at such other place or places (if any) as may be
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 appointed for the
holding of the meeting or adjourned meeting or (in the case of a poll taken
otherwise than at or on the same day as the meeting or adjourned meeting)
for the taking of the poll at which it is to be used, and in default shall
not be treated as valid. Provided that:-
1 in the case of a meeting which is adjourned to, or a poll which is to
be taken on, a date which is less than seven days after the date of
the meeting which was adjourned or at which the poll was demanded, it
shall be sufficient if the instrument of proxy and any such authority
and certification thereof as aforesaid is lodged with the Secretary at
the commencement of the adjourned meeting or the taking of the poll;
2 an instrument of proxy relating to more than one meeting (including
any adjournment thereof) having once been so delivered for the
purposes of any meeting shall not require to be delivered again for
the purposes of any
48
subsequent meeting to which it relates; and
3 the Secretary may accept an instrument of proxy (and any authority
under which it is executed) submitted by telefax provided that such
telefaxes are received, to the satisfaction of the Secretary, at the
Office (or suitable place as may be specified in the notice convening
the meeting or any instrument of proxy sent out by the Company in
relation to the meeting) in clear and legible form not less than
forty-eight hours before the time appointed as aforesaid.
72. Effect of proxy instruments
Deposit of an instrument of proxy in respect of a meeting shall not
preclude a Member from attending and voting at the meeting or at any
adjournment thereof. The instrument appointing a proxy shall be valid,
unless the contrary is stated therein, as well for any adjournment of the
meeting as for the meeting to which it relates and shall be deemed to
include the right to demand or join in demanding a poll.
73. Effect of revocation of proxy or of authorisation
1 A vote given or poll demanded in accordance with the terms of an
instrument of proxy or a resolution authorising a representative to
act on behalf of a body corporate shall be valid notwithstanding the
death or insanity of the principal or the revocation of the instrument
of proxy or of the authority under which the instrument of proxy was
executed or of the resolution authorising the representative to act or
transfer of the Share in respect of which the instrument of proxy or
the authorisation of the representative to act was given, provided
that no intimation in writing of such death, insanity, revocation or
transfer shall have been received by the Company at the Office at
least one hour before the commencement of the meeting or adjourned
meeting at which the instrument of proxy is used or at which the
representative acts.
2 The Directors may send, at the expense of the Company, by post or
otherwise, to the Members instruments of proxy (with or without
stamped
49
envelopes for their return) for use at any general meeting or at any
class meeting, either in blank or nominating any one or more of the
Directors or any other persons in the alternative. If for the purpose
of any meeting invitations to appoint as proxy a person or one of a
number of persons specified in the invitations are issued at the
expense of the Company, such invitations shall be issued to all (and
not to some only) of the Members entitled to be sent a notice of the
meeting and to vote thereat by proxy. The accidental omission to issue
the instruments herein referred to, or the non-receipt of any such
invitation by any Member entitled to receive such invitation shall not
invalidate the proceedings at any such meeting.
Part XII - Directors
74. Number of Directors
Unless otherwise determined by the Company in General Meeting the number of
Directors shall not be more than fifteen nor less than three. The
continuing Directors may act notwithstanding any vacancy in their body,
provided that if the number of the Directors is reduced below the
prescribed minimum the remaining Director or Directors shall appoint
forthwith an additional Director or additional Directors to make up such
minimum or shall convene a general meeting of the Company for the purpose
of making such appointment. If there be no Director or Directors able or
willing to act then any two Members may summon a general meeting for the
purpose of appointing Directors. Any additional Director so appointed
shall hold office (subject to the provisions of the Acts and these
Articles) only until the conclusion of the annual general meeting of the
Company next following such appointment unless he is re-elected during such
meeting and he shall not retire by rotation at such meeting or be taken
into account in determining the Directors who are to retire by rotation at
such meeting.
75. Share qualification
A Director shall not require a Share qualification.
76. Ordinary remuneration of Directors
The ordinary remuneration of the Directors shall be determined from time to
time by the Directors up to such limit as may be set from time to time by
the Members
50
pursuant to an ordinary resolution of the Company and shall be divisible
(unless such resolution shall provide otherwise) among the Directors as
they may agree, or, failing agreement, equally, except that any Director
who shall hold office for part only of the period in respect of which such
remuneration is payable shall be entitled only to rank in such division for
a proportion of the remuneration related to the period during which he has
held office.
77. Special remuneration of Directors
Any Director who holds any executive office (including for this purpose the
office of Chairman or Deputy Chairman whether or not such office is held in
an executive capacity) or who serves on any committee, or who otherwise
performs services which in the opinion of the Directors are outside the
scope of the ordinary duties of a Director, may be paid such extra
remuneration by way of salary, commission or otherwise or may receive such
other benefits as the Directors may determine.
78. Expenses of Directors
The Directors may be paid all travelling, hotel and other expenses properly
incurred by them in connection with their attendance at meetings of
Directors or committees of Directors or general meetings or separate
meetings of the Holders of any class of Shares or of debentures of the
Company or otherwise in connection with the discharge of their duties.
79. Alternate Directors
1 Any Director may at any time appoint, by writing under his hand and
deposited at the Office or delivered at a meeting of the Directors any
person (including another Director) to be his alternate provided
always that no such appointment of a person other than a Director as
an alternate shall be operative unless and until such appointment
shall have been approved by resolution of the Directors.
2 An alternate Director shall be entitled, subject to his giving to the
Company an address within the State, the United Kingdom, Germany or
the United States of America, to receive notices of all meetings of
the Directors and of all meetings of
51
committees of Directors of which his appointor is a member, to attend
and vote at any such meeting at which the Director appointing him is
not personally present and in the absence of his appointor to exercise
all the powers, rights, duties and authorities of his appointor as a
Director (other than the right to appoint an alternate hereunder).
3 Save as otherwise provided in these Articles, an alternate Director
shall be deemed for all purposes to be a Director and shall alone be
responsible for his own acts and defaults and he shall not be deemed
to be the agent of the Director appointing him. The remuneration of
any such alternate Director shall be payable out of the remuneration
paid to the Director appointing him and shall consist of such portion
of the last mentioned remuneration as shall be agreed between the
alternate and the Director appointing him.
4 A Director may revoke at any time the appointment of any alternate
appointed by him. If a Director shall die or cease to hold the office
of Director the appointment of his alternate shall thereupon cease and
determine but if a Director retires by rotation or otherwise but is
reappointed or deemed to have been reappointed at the meeting at which
he retires, any appointment of an alternate Director made by him which
was in force immediately prior to his retirement shall continue after
his re-appointment.
5 Any appointment or revocation pursuant to this Article 79 may be sent
by delivery, post, cable, telegram, telex, telefax, electronic mail or
any other means of communication approved by the Directors and may
bear a printed or facsimile signature of the Director making such
appointment or revocation or in any other manner approved by the
Directors.
6 An alternate Director shall not be counted in reckoning the maximum
number of Directors allowed by these Articles.
Part XIII - Powers of Directors
80. Directors' powers
Subject to the provisions of the Acts, the Memorandum of Association of the
Company and these Articles and to any
52
directions by the Members given by ordinary resolution, not being
inconsistent with these Articles or with the Acts, the business of the
Company shall be managed by the Directors who may do all such acts and
things and exercise all the powers of the Company as are not by the Acts or
by these Articles required to be done or exercised by the Company in
general meeting. No alteration of the Memorandum of Association of the
Company or of these Articles and no such direction shall invalidate any
prior act of the Directors which would have been valid if that alteration
had not been made or that direction had not been given. The powers given by
this Article shall not be limited by any special power given to the
Directors by these Articles and a meeting of Directors at which a quorum is
present may exercise all powers exercisable by the Directors.
81. Power to delegate
Without prejudice to the generality of the last preceding Article, the
Directors may delegate (with power to sub- delegate) any of their powers to
any Managing Director or any other Director holding any other executive
office and to any committee consisting of one or more Directors together
with such other persons (if any) as may be appointed to such committee by
the Directors provided that a majority of the members of each committee
appointed by the Directors shall at all times consist of Directors and that
no resolution of any such committee shall be effective unless a majority of
the members of the committee present at the meeting at which it was passed
are Directors. Insofar as any such power or discretion is delegated to a
committee any reference in these Articles to the exercise by the Directors
of the power or discretion so delegated shall be read and construed as if
it were a reference to the exercise thereof by such a committee. Any such
delegation may be made subject to any conditions the Directors may impose,
and either collaterally with or to the exclusion of their own powers and
may be revoked. Subject to any such conditions, the proceedings of a
committee with two or more members shall be governed by the provisions of
these Articles regulating the proceedings of Directors so far as they are
capable of applying.
82. Appointment of attorneys
The Directors, from time to time and at any time by power of attorney under
seal, may appoint any company, firm or
53
person or fluctuating 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. Any such power of attorney may contain such provisions for the
protection of persons dealing with any such attorney as the Directors may
think fit and may authorise any such attorney to sub-delegate all or any of
the powers, authorities and discretions vested in him.
83. Local management
Without prejudice to the generality of Articles 81 and 82 the Directors may
establish any committees, local boards or agencies for managing any of the
affairs of the Company, either in the State or elsewhere, and may appoint
any persons to be members of such committees, local boards or agencies and
may fix their remuneration and may delegate to any committee, local board
or agent any of the powers, authorities and discretions vested in the
Directors with power to sub-delegate and any such appointment or delegation
may be made upon such terms and subject to such conditions as the Directors
may think fit, and the Directors may remove any person so appointed, and
may annul or vary any such delegation, but no person dealing in good faith
with any such committee, local board or agency, without notice of any such
removal, annulment or variation shall be affected thereby.
84. Borrowing powers
The Directors may exercise all the powers of the Company to borrow or raise
money and to mortgage or charge its undertaking, property, assets, and
uncalled capital or any part thereof subject to Part III of the 1983 Act
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, without any limitation as to amount.
85. Execution of negotiable instruments
All cheques, promissory notes, drafts, bills of exchange and other
negotiable or transferable instruments and all
54
receipts for moneys paid to the Company shall be signed, drawn, accepted,
endorsed or otherwise executed, as the case may be, by such person or
persons and in such manner as the Directors shall determine from time to
time by resolution.
86. Provision for employees
The Directors may exercise any power conferred by the Acts to make
provision for the benefit of persons employed or formerly employed by the
Company or any of its subsidiaries in connection with the cessation or the
transfer to any person of the whole or any part of the undertaking of the
Company or that subsidiary.
Part XIV - Appointment and Retirement of Directors
87. Retirement by rotation
1 At each annual general meeting of the Company one third of the
Directors who are subject to retirement by rotation, rounded down to
the next whole number if it is a fractional number, shall retire from
office, but if there is only one Director who is subject to retirement
by rotation then he shall retire.
2 The Directors, (including any Directors holding executive office
pursuant to these Articles) to retire by rotation shall be those who
have been longest in office since their last appointment or
reappointment but as between persons who became or were last
reappointed Directors on the same day those to retire shall be
determined (unless they otherwise agree among themselves) by lot.
3 A Director who retires at an annual general meeting may be
reappointed, if willing to act. If he is not reappointed (or deemed to
be reappointed pursuant to these Articles) he shall retain office
until the meeting appoints someone in his place or, if it does not do
so, until the end of the meeting.
4 Notwithstanding any other provision of this Article 87, if any of the
Directors who are Directors of the Company on the date of adoption of
these Articles retires prior to or at the third annual general meeting
held following the date of adoption of these
55
Articles, other than in accordance with the provisions of this Article
87 (a "Retiring Director"), any Director appointed to replace any such
Director or, for the avoidance of doubt, any Director taking the place
on the Board originally held by a Retiring Director (in each case a
"Substitute Director") shall be deemed to have been appointed a
Director of the Company on the date on which the Retiring Director was
appointed a Director of the Company, solely for the purpose of
determining which of the Directors are to retire by rotation in
accordance with the provisions of this Article 87. If no Director is
appointed to replace any such Retiring Director or any Substitute
Director then, notwithstanding that no such Director is appointed,
none of the Directors of the Company on the date of adoption of these
Articles shall be required to retire in accordance with the provisions
of this Article 87 at an earlier date than he could otherwise have
been required to retire had such Retiring Director not retired and the
number of Directors to retire at any annual general meeting in
accordance with the provisions of this Article 87 shall accordingly be
reduced, if necessary. The terms of this Article 87.4 shall cease to
apply following the third annual general meeting held following the
date of adoption of these Articles.
88. Deemed reappointment
If the Company, at the meeting at which a Director retires by rotation,
does not fill the vacancy, the retiring Director, if willing to act, shall
be deemed to have been re-appointed unless at the meeting it is resolved
not to fill the vacancy or a resolution for the reappointment of the
Director is put to the meeting and lost.
89. Eligibility for appointment
No person other than a Director retiring by rotation or a director
appointed pursuant to Article 90.2 shall be appointed a Director at any
general meeting unless he is recommended by the Directors or, not less than
seven nor more than forty two Clear Days before the date appointed for the
meeting, a notice executed by a Member entitled to vote at the meeting has
been given to the Company of the intention to propose that person for
appointment
56
stating the particulars which would be required, if he were so appointed,
to be included in the Company's register of Directors together with notice
executed by that person of his willingness to be appointed. No Director
shall be required to retire on account of age.
90. Appointment of additional Directors
1 Subject as aforesaid, the Company by ordinary resolution may appoint a
person to be a Director either to fill a vacancy or as an additional
Director and may also determine the rotation in which any additional
Directors are to retire.
2 The Directors may appoint a person who is willing to act to be a
Director, either to fill a vacancy or as an additional Director,
provided that the appointment does not cause the number of Directors
to exceed any number fixed by or in accordance with these Articles as
the maximum number of Directors. A Director so appointed shall hold
office only until the next following annual general meeting and shall
not be taken into account in determining the Directors who are to
retire by rotation at the meeting. If not re-appointed at such annual
general meeting, such Director shall vacate office at the conclusion
thereof.
Part XV - Disqualification and Removal of Directors
91. Disqualification of Directors
The office of a Director shall be vacated ipso facto if:-
1 he ceases to be a Director by virtue of any provision of the Acts or
he becomes prohibited by law from being a Director;
2 he becomes bankrupt or makes any arrangement or composition with his
creditors generally;
3 in the opinion of a majority of his co-Directors, he becomes incapable
by reason of mental disorder of discharging his duties as a Director;
4 (not being a Director holding for a fixed term an executive office in
his capacity as a Director) he resigns his office by notice to the
Company;
57
5 he is convicted of an indictable offence, unless the Directors
determine otherwise;
6 he shall have been absent for more than six consecutive months without
permission of the Directors from meetings of the Directors held during
that period and his alternate director (if any) shall not have
attended any such meeting in his place during such period and the
Directors pass a resolution that by reason of such absence he has
vacated office;
7 he is removed from office by notice in writing served upon him signed
by all his co-directors; if he holds an appointment to an executive
office which thereby automatically determines, such removal shall be
deemed an act of the Company and shall have effect without prejudice
to any claim for damages for breach of any contract of service between
him and the Company.
8 in the case of a Director appointed to, or otherwise holding, such
office for a fixed term;
(a) Upon the expiry of such terms; or
(b) upon by receipt by such Director of a notice in writing served on
him by the Company automatically terminating his appointment in
accordance with the terms of the agreement pursuant which he was
appointed ("the Relevant Agreement");
(c) in the event that the Company or such Director serves a notice of
termination or appointment by giving the requisite notice in
accordance with the terms of the Relevant Agreement, upon the
expiry of the requisite period of notice.
92. Removal of Directors
The Company, by ordinary resolution of which extended notice has been given
in accordance with the provisions of the Acts, may remove any Director
before the expiry of his period of office notwithstanding anything in these
Articles or in any agreement between the Company and such Director and may,
if thought fit, by ordinary resolution appoint another Director in his
stead. The person appointed shall be subject to retirement at the same
time
58
as if he had become a Director on the date on which the Director in whose
place he is appointed was last appointed a Director. Nothing in this
Article shall be taken as depriving a person removed hereunder of
compensation or damages payable to him in respect of the termination of his
appointment as Director or of any appointment terminating with that of
Director.
Part XVI - Directors' Offices and Interests
93. Executive offices
1 The Directors may appoint one or more of their body to the office of
Managing Director or to any other executive office under the Company
(including, where considered appropriate, the office of the Chairman)
on such terms and for such period as they may determine and, without
prejudice to the terms of any contract entered into in any particular
case, may revoke any such appointment at any time.
2 A Director holding any such executive office shall receive such
remuneration, whether in addition to or in substitution for his
ordinary remuneration as a Director and whether by way of salary,
commission, participation in profits or otherwise or in any
combination of the foregoing as the Directors may determine.
3 The appointment of any Director to the office of Chairman or Managing
Director shall determine automatically if he ceases to be a Director
(other than where he is re-appointed as a Director at an Annual
General Meeting of the Company having retired by rotation in
accordance with these Articles) but without prejudice to any claim for
damages for breach of any contract of service between him and the
Company.
4 The appointment of any Director to any other executive office shall
not determine automatically if he ceases from any cause to be a
Director unless the contract or resolution under which he holds office
shall expressly state otherwise, in which event such determination
shall be without prejudice to any claim for damages for breach of any
contract of service between him and the Company.
59
5 A Director may hold any other office or place of profit under the
Company (except that of Auditor) in conjunction with his office of
Director, and may act in a professional capacity to the Company, on
such terms as to remuneration and otherwise as the Directors shall
arrange.
94. Disclosure of interests by Directors
A Director or shadow director of the Company who is in any way, whether
directly or indirectly, interested in a contract or proposed contract with
the Company shall comply with the provisions of Section 194 of the 1963 Act
with regard to the disclosure of such interest by declaration.
95. Directors' interests
1 A Director notwithstanding his office but subject to his having
disclosed any interest which he is required to disclose whether by
these Articles or the Acts in accordance with these Articles or the
Acts as the case may be:-
(a) may be a party to, or otherwise interested in, any transaction or
arrangement with the Company or any subsidiary or Associated
Company thereof or in which the Company or any subsidiary or
Associated Company thereof is otherwise interested;
(b) may be a Director or other officer of, or employed by, or a party
to any transaction or arrangement with, or otherwise interested
in, any body corporate promoted by the Company or in which the
Company or any subsidiary or Associated Company thereof is
otherwise interested; and
(c) shall not be accountable, by reason of his office, to the Company
for any benefit which he derives from any such office or
employment or from any such transaction or arrangement or from
any interest in any such body corporate and no such transaction
or arrangement shall be liable to be avoided on the ground of any
such interest or benefit.
60
2 No Director or intended Director shall be disqualified by his office
from contracting with the Company either as vendor, purchaser or
otherwise, nor shall any such contract or any contract or arrangement
entered into by or on behalf of the other company in which any
Director shall be in any way interested be avoided nor shall any
Director so contracting or being so interested be liable to account to
the Company for any profit realised by any such contract or
arrangement by reason solely of such Director holding that office or
of the fiduciary relationship thereby established. The nature of a
Director's interest must be declared by him at the meeting of the
Directors at which the question of entering into the contract or
arrangement is first taken into consideration or, if the Director was
not at the date of that meeting interested in the proposed contract or
arrangements at the next meeting of the Directors held after he became
so interested, and in a case where the Director becomes interested in
a contract or arrangement after it is made at the first meeting of the
Directors held after he becomes so interested.
3 A copy of every declaration made and notice given under this Article
shall be entered within three days after the making or giving thereof
in a book kept for this purpose. Such book shall be open for
inspection without charge by any Director, Secretary, Auditor or
Member of the Company at the Office and shall be produced at every
general meeting of the Company and at any meeting of the Directors if
any Director so requests in sufficient time to enable the book to be
available at the meeting.
4 For the purposes of this Article:-
(a) a general notice given to the Directors that a Director is to be
regarded as having an interest of the nature and extent specified
in the notice in any transaction or arrangement in which a
specified person or class of persons or company is interested
shall be deemed to be a disclosure that the Director has an
interest in any such transaction of the nature and extent so
specified with the relevant party; and
(b) an interest (whether of his or of such a specified person) of
which a Director has no knowledge and of which it is unreasonable
to
61
expect him to have knowledge shall not be treated as an interest
of his.
96. Restriction on Directors' voting
1 Save as otherwise provided by these Articles, a Director shall not
vote at a meeting of the Directors or a committee of Directors on any
resolution concerning a matter in which he has, directly or indirectly
or together with any person or persons connected with him an interest
which is material (otherwise than by virtue of his interests in Shares
or debentures or other securities of, or otherwise in or through, the
Company) or a duty which conflicts or may conflict with the interests
of the Company. A Director shall not be counted in the quorum present
at a meeting in relation to any such resolution on which he is not
entitled to vote.
2 A Director shall be entitled (unless he has some material interest or
duty which conflicts or may conflict with the interests of the Company
which is not indicated below) to vote (and be counted in the quorum)
in respect of any resolutions concerning any of the following matters,
namely:-
(a) the giving of any security, guarantee or indemnity in respect of
money lent by him to the Company or any of its subsidiaries or
Associated Companies or obligations incurred by him on behalf of
the Company or any of its subsidiaries at the request of or for
the benefit of the Company or any of its subsidiary or Associated
Companies;
(b) the giving of any security, guarantee or indemnity to a third
party in respect of a debt or obligation of the Company or any of
its subsidiary or Associated Companies for which he himself has
assumed responsibility in whole or in part and whether alone or
jointly with others under a guarantee or indemnity or by the
giving of security;
(c) the underwriting by him of any Shares, debentures or other
securities of the Company or any of its subsidiaries or
Associated Companies;
62
(d) any proposal concerning any offer of, or for, shares or
debentures or other securities of the Company or any of its
subsidiary or Associated Companies, or any offer by the Company
or any of its subsidiary or Associated Companies for any shares
or debentures or other securities of any other company, whether
by way of subscription, purchase or exchange or otherwise, in
which offer he is entitled to participate as a holder of shares,
debentures or other securities, or in which he is or is to be
interested as a participant in the underwriting or sub-
underwriting thereof;
(e) any proposal concerning any other company in which he is
interested, directly or indirectly or together with any person or
persons connected with him and whether as an officer or
shareholder or otherwise howsoever, provided that he is not the
holder of or beneficially interested, directly or indirectly in
one per cent. or more of the issued shares of any class of such
company or of the voting rights available to members of such
company (any such interest being deemed for the purposes of this
Article to be a material interest in all circumstances);
(f) any proposal concerning the adoption, modification or operation
of a superannuation fund or retirement benefits scheme under
which he may benefit and which has been approved by or is subject
to and conditional upon approval for taxation purposes by the
appropriate Revenue authorities which does not award the Director
any privilege or benefit not generally awarded to the employees
to whom such arrangement or scheme relates;
(g) any 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 thereof
to acquire Shares in the Company, any of its subsidiary or
Associated Companies or any company in which the Company is
interested, or any arrangement for the benefit of employees of
the Company or any of its subsidiary or Associated Companies or
any company in which the Company is interested, which does not
award the Director any
63
privilege or benefit not generally awarded to the employees to
whom such scheme or arrangement relates or for the benefit of
whom such scheme or arrangement was established; or
(h) any proposal concerning the giving of any indemnity pursuant to
Article 138 or the discharge of the cost of any insurance cover
to be arranged in connection therewith.
3 Where proposals are under consideration concerning the appointment
(including fixing or varying the terms of appointment) of two or more
Directors to offices or employments with the Company or any company in
which the Company is interested such proposals may be divided and
considered in relation to each Director separately and in such case
each of the Directors concerned (if not debarred from voting thereon),
shall be entitled to vote (and be counted in the quorum) in respect of
each resolution except that concerning his own appointment.
4 If a question arises at a meeting of Directors or of a committee of
Directors as to the materiality of a Director's interest or as to the
right of any Director to vote and such question is not resolved by his
voluntarily agreeing to abstain from voting, such question may be
referred, before the conclusion of the meeting, to the chairman of the
meeting and his ruling in relation to any Director other than himself
shall be final and conclusive except in a case where the nature or
extent of the interest of such Director has not been fully and fairly
disclosed; provided that, if such question arises in relation to the
chairman of the meeting, he shall temporarily vacate the chair.
5 For the purposes of this Article, an interest of a person who is the
spouse or a minor child of a Director shall be treated as an interest
of the Director and in relation to an alternate director, an interest
of his appointor shall be treated as an interest of the alternate
director.
6 The Company by ordinary resolution may suspend or relax the provisions
of this Article to any extent or ratify any transaction not duly
authorised by reason of a contravention of this Article.
97. Entitlement to grant pensions
64
The Directors may provide benefits, whether by way of pensions, gratuities
or otherwise, for any Director, former Director or other officer or former
officer of the Company or to any person who holds or has held any
employment with the Company or with any body corporate which is or has been
a subsidiary of or an Associated Company of the Company or a predecessor in
business of the Company, any subsidiary of the Company or of any such
Associated Company and to any member of his family or any person who is or
was dependent on him and may set up, establish, support, alter, maintain
and continue any scheme for providing all or any such benefits and for such
purposes any Director accordingly may be, become or remain a member of, or
rejoin, any scheme and receive or retain for his own benefit all benefits
to which he may be or become entitled thereunder. The Directors may pay
out of the funds of the Company any premiums, contributions or sums payable
by the Company under the provisions of any such scheme in respect of any of
the persons or class of persons above referred to who are or may be or
become members thereof.
Part XVII - Proceedings of Directors
98. Convening and regulation of Directors' meetings
1 Subject to the provisions of these Articles, the Directors may
regulate their proceedings as they think fit. A Director may, and the
Secretary at the request of a Director shall, call a meeting of the
Directors at any time. Any Director may waive notice of any meeting
and any such waiver may be retrospective. If the Directors so resolve,
it shall not be necessary to give notice of a meeting of Directors to
any Director who, being a resident of the State, is for the time being
absent from the State.
2 Notice of a meeting of the Directors shall be deemed to be duly given
to a Director if it is given to him personally in writing or by word
of mouth or is sent in writing by delivery, post, cable, telegram,
telex, telefax, electronic mail or any other means of communication
approved by the Directors to him at his last known address or any
other address given by him to the Company for this purpose.
99. Quorum for Directors' meetings
65
1 The quorum for the transaction of the business of the Directors may be
fixed by the Directors and unless so fixed at any other number shall
be three. A person who holds office only as an alternate Director
shall, if his appointor is not present, be counted in a quorum but,
notwithstanding that such person may act as alternate Director for
more than one Director, he shall not count as more than one for the
purposes of determining whether a quorum is present.
2 A Director acting as alternate shall have an additional vote at
meetings of Directors for each Director for whom he acts as alternate
but he shall count as only one for the purpose of determining whether
a quorum be present.
3 Any Director who ceases to be a Director at a meeting of the Directors
may continue to be present and to act as a Director and to be counted
in the quorum until the termination of the meeting provided no other
Director objects and provided also that otherwise a quorum of
Directors would not be present.
4 The continuing Directors or a sole Director may act notwithstanding
any vacancies in their number but if the number of Directors is less
than the number fixed as the quorum, they may act only for the purpose
of filling vacancies or of calling a general meeting.
100. Voting at Directors' meetings
1 Questions arising at any meeting of Directors shall be decided by a
majority of votes. Where there is an equality of votes, the chairman
of the meeting shall not have a second or casting vote.
2 Subject as hereinafter provided, each Director present and voting
shall have one vote and in addition to his own vote shall be entitled
to one vote in respect of each other Director not present at the
meeting who shall have authorised him in respect of such meeting to
vote for such other Director in his absence. Any such authority may
relate generally to all meetings of the Directors or to any specified
meeting or meetings and must be in writing and may be sent by
delivery, post, cable, telegram, telex, telefax, electronic mail or
any
66
other means of communication approved by the Directors and may bear a
printed or facsimile signature of the Director giving such authority.
The authority must be delivered to the Secretary prior to or must be
produced at the first meeting at which a vote is to be cast pursuant
thereto provided that no Director shall be entitled to any vote at a
meeting on behalf of another director pursuant to this paragraph if
the other Director shall have appointed an alternate director and that
alternate Director is present at the meeting at which the Director
proposes to vote pursuant to this paragraph.
101. Telecommunication meetings
Any Director may participate in a meeting of the Directors or any committee
of the Directors by means of conference telephone or other
telecommunications equipment by means of which all persons participating in
the meeting can hear each other speak and such participation in a meeting
shall constitute presence in person at the meeting but such Director shall
not be counted in assessing whether any quorum is present at such meeting.
Such a meeting shall be deemed to take place where the largest group of
Directors participating is assembled or if there is no group which is
larger than any other group, where the Chairman of the meeting then is.
102. Chairman of the board of Directors
Subject to any appointment to the office of Chairman made pursuant to these
Articles, the Directors may elect from their number a chairman of their
meetings and determine the period for which he is to hold office, but if no
such chairman is elected or if at any meeting the chairman is unwilling to
act or is not present within five minutes after the time appointed for
holding the same the deputy Chairman if any, shall be the chairman of the
meeting or if he is unwilling to act or is not present within five minutes
after the time appointed for holding the same the Directors present may
choose one of their number to be chairman of the meeting.
103. Validity of acts of Directors
67
All acts done by any meeting of the Directors or of a committee or sub-
committee of Directors or by any person acting as a Director,
notwithstanding that it be afterwards discovered that there was some defect
in the appointment of any such Director or person acting as aforesaid, or
that they or any of them were disqualified from holding office or had
vacated office, or were not entitled to vote shall be as valid as if every
such person had been duly appointed and was qualified to be a Director, had
continued to be a Director and had been entitled to vote.
104. Directors' resolutions or other documents in writing
A resolution or other document in writing signed by all the Directors
entitled to receive notice of a meeting of Directors or of a committee of
Directors shall be as valid as if it had been passed at a meeting of
Directors or (as the case may be) a committee of Directors; duly convened
and held and may consist of several documents in the like form each signed
by one or more Directors but a resolution signed by an alternate Director
need not also be signed by his appointor and, if it is signed by a Director
who has appointed an alternate Director, it need not be signed by the
alternate Director in that capacity. Such resolution or other document or
documents when duly signed may be delivered or transmitted (unless the
Directors shall otherwise determine either generally or in any specific
case) by facsimile transmission or some other similar means of transmitting
the contents of documents.
Part XVIII - The Secretary
105. Appointment of secretary
The Secretary shall be appointed by the Directors for such term, at such
remuneration and upon such conditions as they may think fit and any
Secretary so appointed may at any time be removed by them. Anything
required or authorised by the Acts or these Articles to be done by or to
the Secretary may be done by or to any assistant or acting Secretary or, if
there is no assistant or acting Secretary readily available and capable of
acting, by or to any officer or employee of the Company authorised
generally or specially in that behalf by the Directors: Provided that any
provision of the Acts or these Articles requiring or authorising a thing to
be done by or to a
68
Director and the Secretary shall not be satisfied by its being done by or
to the same person acting both as a Director and as, or in the place of,
the Secretary.
Part XIX - The Seal
106. Use of Seal
The Directors shall ensure that the Seal shall be used only by the
authority of the Directors or of a committee authorised by the Directors.
107. Seal for use abroad
The Company may exercise the powers conferred by the Acts with regard to
having an official seal for use abroad and such powers shall be vested in
the Directors.
108. Signature of sealed instruments
1 Subject as provided in Article 108.2, every instrument to which the
Seal shall be affixed shall, as part of the sealing process, be signed
by at least one Director or other person duly authorised in that
behalf by the Directors and by the Secretary, a second Director or one
of the persons authorised as aforesaid (who has not already signed)
and, in favour of any purchaser or person dealing with the Company in
good faith, such signatures shall be conclusive evidence of the fact
that the Seal has been properly affixed.
2 The Directors may by resolution determine, either generally or in any
particular case, that in respect of certificates for Shares or
debentures or other securities of the Company, the signature of any
Director or of the Secretary or other person authorised by the
Directors as aforesaid forming part of the sealing process may be
applied or effected by non-autographic means, or that such
certificates shall bear no signatures, and in favour of any registered
holder or other person acquiring any such Shares or debentures or
other securities in good faith a certificate executed in any of the
modes of execution authorised herein shall be as valid and effective
as if such certificate was
69
issued under the Seal of the Company pursuant to these Articles.
Part XX - Dividends and Reserves
109. Declaration of dividends
1 Subject to the provisions of the Acts, the Company by ordinary
resolution may declare dividends in accordance with the respective
rights of the Members, but no dividend shall exceed the amount
recommended by the Directors. Dividends may be declared or paid in any
currency.
2 The Directors may at their discretion make provision to enable any
Holder of Shares as they shall from time to time determine to receive
dividends duly declared in a currency or currencies other than US
Dollars. For the purposes of the circulation of the amount receivable
in respect of any dividend, the rate of exchange to be used to
determine the foreign currency equivalent of any sum payable as a
dividend shall be such market rate selected by the Directors as they
shall consider appropriate ruling at the close of business in Dublin
on the date which is the business day last preceding (a) in the case
of a dividend to be declared by the Company in general meeting, the
date on which the Directors publicly announce their intention to
recommend that specific dividend and (b) in the case of any other
dividend, the date on which the Directors publicly announce their
intention to pay that specific dividend.
3 Where a Holder of Shares has elected or agreed pursuant to provision
made under these Articles to receive dividends in a currency other
than US Dollars the Directors may at their discretion make such
arrangements as they deem necessary to enable payment of the dividend
to be made to such Holders in such currency for value on the date on
which the relevant dividend is paid, or such later date as the
Directors may determine.
110. Scrip dividends
70
The Directors may, if authorised by an ordinary resolution of the Company,
offer any Holders of Shares the right to elect to receive Shares, credited
as fully paid, instead of cash in respect of the whole (or some part, to be
determined by the Directors) of any dividend specified by the ordinary
resolution. The following provisions shall apply (subject always to the
provisions of the Acts):
1 An ordinary resolution may specify a particular dividend, or may
specify all or any dividends declared within a specified period, but
such period may not end later than the beginning of the annual general
meeting next following the date of the meeting at which the ordinary
resolution is passed.
2 The entitlement of each Holder of Shares to new Shares shall be such
that the relevant value of the entitlement shall be as nearly as
possible equal to (but not greater than) the cash amount (disregarding
any tax credit) of the dividend that such holder elects to forgo. For
this purpose, "relevant value" shall be calculated by reference to the
price at which the Shares are quoted or dealt in (whether directly or
indirectly by way of derivative securities) ex the relevant dividend
on NASDAQ or, in the event that this shall in the opinion of the
Directors, be impracticable, in such manner as the Directors may
determine, taking into account, if appropriate, the price at which any
recent dealing in the Shares (whether on any of the Stock Exchanges or
otherwise) took place.
3 On or as soon as practicable after announcing that the Company is to
declare or recommend any dividend, the Directors, if they intend to
offer an election in respect of that dividend, shall also announce
that intention, and shall after determining the basis of allotment, if
they decide to proceed with the offer, notify the Holders of Shares in
writing of the right of election offered to them and specify the
procedure to be followed and place at which, and the latest time by
which elections must be lodged in order to be effective. Any election
by a Holder of Shares shall be binding on every successor in title to
the Shares in respect of which the election is made.
4 The Directors shall not proceed with any election unless the Company
has sufficient unissued Shares authorised for issue and sufficient
reserves or
71
funds that may be capitalised to give effect to it after the basis of
allotment is determined.
5 The Directors may exclude from any offer any Holders of Shares where
the Directors believe that the making of the offer to them would or
might involve the contravention of the laws of any territory or that
for any other reason the offer should not be made to them.
6 The dividend (or that part of the dividend in respect of which a right
of election has been offered) shall not be payable on Shares in
respect of which an election has been made ("the elected Shares") and
instead additional Shares shall be allotted to the holders of the
elected Shares on the basis of allotment calculated as stated. For
such purpose the Directors shall capitalise, out of any amount for the
time being standing to the credit of any reserve or fund (including
the profit and loss account) whether or not the same is available for
distribution as the Directors may determine, a sum equal to the
aggregate nominal amount of the additional Shares to be allotted on
that basis and apply it in paying up in full the appropriate number of
unissued Shares for allotment and distribution to the holders of the
elected Shares on that basis and the provisions of Article 122 shall
apply mutatis mutandis to any capitalisation made pursuant to this
Article.
7 The additional Shares when allotted shall rank pari passu in all
respects with the fully-paid Shares then in issue except that they
will not be entitled to participation in the relevant dividend.
8 (a) The Directors may do all acts and things considered necessary or
expedient to give effect to any such capitalisation with full
power for the Directors to make such provisions as they think fit
in the case of Shares becoming distributable in fractions
(including provisions whereby, in whole or in part, the
fractional entitlements are disregarded and, the benefit of
fractional entitlements accrues to the Company rather than to the
Members concerned). The Directors may authorise any person to
enter on behalf of all the Members interested into an agreement
with the Company providing for such capitalisation and matters
incidental thereto and any agreement made under
72
such authority shall be effective and binding on all concerned.
The Directors may, in their absolute discretion, if it shall in
their opinion seem expedient, suspend or terminate (whether
temporarily or otherwise) such right to elect and may do such
acts and things considered necessary or expedient with regard to,
or in order to effect, any such suspension or termination;
(b) Notwithstanding the foregoing, the Directors may at any time
prior to payment of the relevant dividend determine, if it
appears to them desirable to do so because of a change in
circumstances, that the dividend shall be payable wholly in cash
and if they so determine then all elections made shall be
disregarded. The relevant dividend may, at the discretion of the
Directors, be payable wholly in cash if the Shares of the Company
cease to be listed or dealt in on any of the Stock Exchanges or
any other recognised stock exchange at any time prior to the due
date of issue of the additional Shares or, if such listing is
suspended and not reinstated by the date immediately preceding
the due date of such issue.
111. Interim and fixed dividends
Subject to the provisions of the Acts, the Directors may declare and pay
interim dividends if it appears to them that they are justified by the
profits of the Company available for distribution. If the share capital is
divided into different classes, the Directors may declare and pay interim
dividends on Shares which confer deferred or non-preferred rights with
regard to dividend as well as on Shares which confer preferential rights
with regard to dividend, but subject always to any restrictions for the
time being in force (whether under these Articles, under the terms of issue
of any Shares or under any agreement to which the Company is a party, or
otherwise) relating to the application, or the priority of application, of
the Company's profits available for distribution or to the declaration or
as the case may be the payment of dividends by the Company. Subject as
aforesaid, the Directors may also pay at intervals settled by them any
dividend payable at a fixed rate if it appears to them that the profits
available for distribution justify the payment. Provided the Directors act
in good faith they shall not incur any liability to
73
the Holders of Shares conferring preferred rights for any loss they may
suffer by the lawful payment of an interim dividend on any Shares having
deferred or non-preferred rights.
112. Payment of dividends
1 Except as otherwise provided by the rights attached to Shares, all
dividends shall be declared and paid according to the amounts paid up
on the Shares on which the dividend is paid. Subject as aforesaid, all
dividends shall be apportioned and paid proportionately to the amounts
paid or credited as paid on the Shares during any portion or portions
of the period in respect of which the dividend is paid; but, if any
Share is issued on terms providing that it shall rank for dividend as
from a particular date, such Share shall rank for dividend
accordingly. For the purposes of this Article, no amount paid on a
Share in advance of calls shall be treated as paid on a Share.
2 If several persons are registered as joint Holders of any Share, any
one of them may give effectual receipts for any dividend or other
moneys payable on or in respect of the Share.
113. Deductions from dividends
The Directors may deduct from any dividend or other moneys payable to any
Member in respect of a Share any moneys presently payable by him to the
Company in respect of that Share.
114. Dividends in specie
A general meeting declaring a dividend may direct, upon the recommendation
of the Directors, that it shall be satisfied wholly or partly by the
distribution of assets (and, in particular, of paid up Shares, debentures
or debenture stock of any other company or in any one or more of such ways)
and the Directors shall give effect to such resolution. Where any
difficulty arises in regard to the distribution, the Directors may settle
the same as they think expedient and in particular may issue fractional
certificates and fix the value for distribution of such specific assets or
any part thereof in order to adjust the rights of all the parties and may
74
determine that cash payments shall be made to any Members upon the footing
of the value so fixed and may vest any such specific assets in trustees.
115. Payment of dividends by post
Any dividend or other moneys payable in respect of any Share may be paid by
cheque or warrant sent by post, at the risk of the person or persons
entitled thereto, to the registered address of the Holder or, where there
are joint Holders, to the registered address of that one of the joint
Holders who is first named on the Register or to such person and to such
address as the Holder or joint Holders may in writing direct. Every such
cheque or warrant shall be made payable to the order of the person to whom
it is sent and payment of the cheque or warrant shall be a good discharge
to the Company. Any joint Holder or other person jointly entitled to a
Share as aforesaid may give receipts for any dividend or other moneys
payable in respect of the Share. The Directors may also, in circumstances
which they consider appropriate, arrange for payment of dividends by
electronic funds transfer, bank transfer or by any other method selected by
the Directors from time to time and in such event the debiting of the
Company's account in respect of the appropriate amount shall be deemed a
good discharge of the Company's obligations in respect of any payment made
by any such method.
116. Dividends not to bear interest
No dividend or other moneys payable by the Company on or in respect of any
Shares shall bear interest against the Company unless otherwise provided by
the rights attached to the Shares.
117. Payment to Holders on a particular date
Any resolution declaring a dividend on Shares of any class, whether a
resolution of the Company in general meeting or a resolution of the
Directors, may specify that the same may be payable to the persons
registered as the Holders of such Shares at the close of business on a
particular date, notwithstanding that it may be a date prior to that on
which the resolution is passed, and thereupon the dividend shall be payable
to them in accordance with their respective holdings so registered,
75
but without prejudice to the rights inter se of transferors and transferees
of any such Shares in respect of such dividend. The provisions of this
Article shall apply, mutatis mutandis, to capitalisations to be effected in
pursuance of these Articles.
118. Unclaimed dividends
If the Directors so resolve, any dividend which has remained unclaimed for
twelve years from the date of its declaration shall be forfeited and cease
to remain owing by the Company. The payment by the Directors of any
unclaimed dividend or other moneys payable in respect of a Share into a
separate account shall not constitute the Company a trustee in respect
thereof. Any dividend, interest or other sum payable which remains
unclaimed for one year after having been declared may be invested or
otherwise made use of by the Directors for the benefit of the Company until
claimed.
119. Reserves
Before recommending any dividend, whether preferential or otherwise, the
Directors may carry to reserve out of the profits of the Company such sums
as they think proper. All sums standing to reserve may be applied from
time to time at the discretion of the Directors for any purpose to which
the profits of the Company may be properly applied and at the like
discretion may be either employed in the business of the Company or
invested in such investments as the Directors may lawfully determine. 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 may
lawfully determine. Any sum which the Directors may carry to reserve out
of the unrealised profits of the Company shall not be mixed with any
reserve to which profits available for distribution have been carried. The
Directors may also carry forward, without placing the same to reserve, any
profits which they may think it prudent not to divide.
Part XXI - Accounts
120. Accounts
76
1 The Directors shall cause to be kept proper books of account, whether
in the form of documents or otherwise, that:
(a) correctly record and explain the transactions of the Company,
(b) will at any time enable the financial position of the Company to
be determined with reasonable accuracy,
(c) will enable the Directors to ensure that any balance sheet,
profit and loss account or income and expenditure account of the
Company complies with the requirements of the Acts, and
(d) will enable the accounts of the Company to be readily and
properly audited.
2 The books of account of the Company shall be kept on a continuous and
consistent basis, that is to say, the entries therein shall be made in
a timely manner and be consistent from one year to the next.
3 Proper books shall not be deemed to be kept if there are not kept such
books of account as comply with the Acts and as are necessary to give
a true and fair view of the state of the Company's affairs and to
explain its transactions.
4 The books of account shall be kept at the Office or, subject to the
provisions of the Acts, at such other place as the Directors think fit
and shall be open at all reasonable times to the inspection of the
Directors. Subject as aforesaid no member of the Company or other
person shall have any right of inspecting any account or book or
document of the Company except as may be conferred by law or ordered
by a Court of competent jurisdiction or authorised by the Directors.
5 In accordance with the provisions of the Acts, the Directors shall
cause to be prepared and to be laid before the annual general meeting
of the Company from time to time such profit and loss accounts,
balance sheets, group accounts and reports as are required by the Acts
to be prepared and laid before such meeting.
77
6 A copy of every balance sheet (including every document required by
law to be annexed thereto) which is to be laid before the annual
general meeting of the Company together with a copy of the Directors'
report and Auditors' report shall be sent, not less than twenty-one
Clear Days before the date of the annual general meeting, to every
person entitled under the provisions of the Acts to receive them; and
the required number of copies of these documents shall be forwarded at
the same time to the appropriate sections of The Stock Exchanges.
7 Auditors shall be appointed and removed and their duties regulated in
accordance with the Acts.
Part XXII - Capitalisation of Profits or Reserves
121. Capitalisation of profits and reserves
Without prejudice to any powers conferred on the Directors by these
Articles, the Company in general meeting may resolve, upon the
recommendation of the Directors, that any sum for the time being standing
to the credit of any of the Company's reserves (including any capital
redemption reserve fund or Share premium account) or to the credit of the
profit and loss account be capitalised and applied on behalf of the Members
who would have been entitled to receive that sum if it had been distributed
by way of dividend and in the same proportions either in or towards paying
up amounts for the time being unpaid on any Shares held by them
respectively, or in paying up in full unissued Shares or debentures of the
Company of a nominal amount equal to the sum capitalised (such Shares or
debentures to be allotted and distributed credited as fully paid up to and
amongst such Holders in the proportions aforesaid) or partly in one way and
partly in another, so, however, that the only purposes for which such sums
standing to the credit of the capital redemption reserve fund or the share
premium account shall be applied shall be those permitted by the Acts.
122. Capitalisation and use of non-distributable profits and reserves
Without prejudice to any powers conferred on the Directors as aforesaid,
the Company in general meeting
78
may resolve, on the recommendation of the Directors, that it is desirable
to capitalise any part of the amount for the time being standing to the
credit of any of the Company's reserve accounts or to the credit of the
profit and loss account which is not available for distribution by applying
such sum in paying up in full unissued Shares to be allotted as fully paid
bonus Shares to those Members of the Company who would have been entitled
to that sum if it were distributable and had been distributed by way of
dividend (and in the same proportions) and the Directors shall give effect
to such resolution.
123. Implementation of capitalisation issues
Whenever such a resolution is passed in pursuance of either of the two
immediately preceding Articles, the Directors shall make all appropriations
and applications of the undivided profits resolved to be capitalised
thereby and all allotments and issues of fully paid Shares or debentures,
if any, and generally shall do all acts and things required to give effect
thereto with full power to the Directors to make such provisions as they
shall think fit for the case of Shares or debentures becoming distributable
in fractions (and, in particular, without prejudice to the generality of
the foregoing, either to disregard such fractions or to sell the Shares or
debentures represented by such fractions and distribute the net proceeds of
such sale to and for the benefit of the Company or to and for the benefit
of the Members otherwise entitled to such fractions in due proportions) and
to authorise any person to enter on behalf of all the Members concerned
into an agreement with the Company providing for the allotment to them
respectively, credited as fully paid up, of any further Shares or
debentures to which they may become entitled on such capitalisation or, as
the case may require, for the payment up by the application thereto of
their respective proportions of the profits resolved to be capitalised of
the amounts remaining unpaid on their existing Shares and any agreement
made under such authority shall be binding on all such Members.
Part XXIII - Notices
124. Notices in writing
79
Subject to Article 98.2 as respects the giving of notices of meetings of
the Directors, any notice to be given, served or delivered pursuant to
these Articles shall be in writing.
125. Service of notices
1 Subject as provided in Article 125.7, a notice or document (including
a Share certificate) to be given, served or delivered in pursuance of
these Articles may be given to, served on or delivered to any Member
by the Company:
(a) by handing same to him or his authorised agent;
(b) by leaving the same at his registered address; or
(c) by sending the same by the post in a pre-paid cover addressed to
him at his registered address.
2 Where a notice or document is given, served or delivered pursuant to
Article 125.1(a) or (b), the giving, service or delivery thereof shall
be deemed to have been effected at the time the same was handed to the
Member or his authorised agent, or left at his registered address (as
the case may be).
3 Where a notice or document is given, served or delivered pursuant to
Article 125.1(c), the giving, service or delivery thereof shall be
deemed to have been effected at the expiration of twenty-four hours
after the cover containing it was posted. In proving service or
delivery it shall be sufficient to prove that such cover was properly
addressed, stamped and posted.
4 Every legal personal representative, committee, receiver, curator
bonis or other legal curator, assignee in bankruptcy or liquidator of
a Member shall be bound by a notice given as aforesaid if sent to the
last registered address of such Member, notwithstanding that the
Company may have notice of the death, lunacy, bankruptcy, liquidation
or disability of such Member.
5 Without prejudice to the provisions of Article 125.1(a) and (b), if at
any time by reason of the
80
suspension or curtailment of postal services within the State, the
Company is unable effectively to convene a general meeting by notice
sent through the post, a general meeting may be convened by a notice
advertised on the same day in at least one leading national daily
newspaper published in the State (and one national daily newspaper
published in the United Kingdom and the United States of America) and
such notice shall be deemed to have been duly served on all Members
entitled thereto at noon on the day on which the said advertisement or
advertisements shall appear. In any such case the Company shall send
confirmatory copies of the notice through the post to those Members
whose registered addresses are outside the State (if or to the extent
that in the opinion of the Directors it is practical so to do) or are
in areas of the State unaffected by such suspension or curtailment of
postal services and if at least ninety-six hours prior to the time
appointed for the holding of the meeting the posting of notices to
Members in the State, or any part thereof which was previously
affected, has become practical in the opinion of the Directors, the
Directors shall send forthwith confirmatory copies of the notice by
post to such Members. The accidental omission to give any such
confirmatory copy of a notice of a meeting to, or the non-receipt of
any such confirmatory copy by, any person entitled to receive the same
shall not invalidate the proceedings at the meeting.
6 Notwithstanding anything contained in this Article the Company shall
not be obliged to take account of or make any investigations as to the
existence of any suspension or curtailment of postal services within
or in relation to all or any part of any jurisdiction or area other
than the State.
7 The Company shall, notwithstanding the provisions of Article 125.1 to
125.5, be entitled (but not obliged) in any case where it is possible
to do so, to serve a notice or notices on any particular Holder or
Holders by means of telefax, electronic mail or other means of
communication approved by the Directors; in the case of a notice
served by telefax, the same shall be deemed to have been effected upon
the correct answer back having been received and in the case of a
notice served by electronic mail, the same shall be deemed to have
been effected when a sufficient acknowledgement or receipt shall have
been received by the Company.
81
126. Notices to members
Any Member whose registered address is not within the State, the United
Kingdom, Germany, the United States of America, the Channel Islands or the
Isle of Man and who gives to the Company an address within any of the above
territories at which notices may be served upon him shall be entitled to
have notices served upon him at that address but unless he does so shall
not be entitled to receive any notice from the Company.
127. Service on joint Holders
A notice may be given by the Company to the joint Holders of a Share by
giving the notice to the joint Holder whose name stands first in the
Register in respect of the Share and notice so given shall be sufficient
notice to all the joint Holders.
128. Service on transfer or transmission of Shares
1 Every person who becomes entitled to a Share shall before his name is
entered in the Register in respect of the Share, be bound by any
notice in respect of that Share which has been duly given to a person
from whom he derives his title provided that the provisions of this
paragraph shall not apply to any notice served under Article 67
unless, under the provisions of Article 67.3, it is a notice which
continues to have effect notwithstanding the registration of a
transfer of the Shares to which it relates.
2 Without prejudice to the provisions of these Articles allowing a
meeting to be convened by newspaper advertisement, a notice may be
given by the Company to the persons entitled to a Share in consequence
of the death or bankruptcy of a Member by sending or delivering it, in
any manner authorised by these Articles for the giving of notice to a
Member, addressed to them at the address, if any, supplied by them for
that purpose. Until such an address has been supplied, a notice may be
given in any manner in which it might have been given if the death or
bankruptcy had not occurred.
82
129. Signature to notices
The signature to any notice to be given by the Company may be written or
printed.
130. Deemed receipt of notices
A Member present, either in person or by proxy, at any meeting of the
Company or the Holders of any class of Shares in the Company shall be
deemed to have received notice of the meeting and, where requisite, of the
purposes for which it was called.
Part XXIV - Winding up
131. Distribution on winding up
If the Company shall be wound up and the assets available for distribution
among the Members as such shall be insufficient to repay the whole of the
paid up or credited as paid up share capital, such assets shall be
distributed so that, as nearly as may be, the losses shall be borne by the
Members in proportion to the capital paid up or credited as paid up at the
commencement of the winding up on the Shares held by them respectively.
And if in a winding up the assets available for distribution among the
Members shall be more than sufficient to repay the whole of the share
capital paid up or credited as paid up at the commencement of the winding
up, the excess shall be distributed among the Members in proportion to the
capital at the commencement of the winding up paid up or credited as paid
up on the said Shares held by them respectively. Provided that this
Article shall not affect the rights of the Holders of Shares issued upon
special terms and conditions.
132. Distribution in specie
If the Company is wound up, the liquidator, with the sanction of a special
resolution of the Company and any other sanction required by the Acts, may
divide among the Members in specie or kind the whole or any part of the
assets of the Company (whether they shall consist of property of the same
kind or not) and, for such purpose,
83
may value any assets and determine how the division shall be carried out as
between the Members or different classes of Members. The liquidator, with
the like sanction, may vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the contributories as, with
the like sanction, he determines, but so that no Member shall be compelled
to accept any assets upon which there is a liability.
Part XXV - Miscellaneous
133. Minutes of meetings
The Directors shall cause minutes to be made of the following matters,
namely:-
1 of all appointments of officers and committees made by the Directors
and of their salary or remuneration;
2 of the names of Directors present at every meeting of the Directors
and of the names of any Directors and of all other members thereof
present at every meeting of any committee appointed by the Directors;
and
3 of all resolutions and proceedings of all meetings of the Company and
of the Holders of any class of Shares in the Company and of the
Directors and of committees appointed by the Directors.
Any such minute as aforesaid, if purporting to be signed by the Chairman of
the meeting at which the proceedings were held, or by the Chairman of the
next succeeding meeting, shall be receivable as prima facie evidence of the
matters stated in such minute without any further proof.
134. Inspection
The Directors shall determine from time to time whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the
inspection of Members, not being Directors, and 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 the Acts or authorised by
the Directors or by the Company in general meeting. No Member (not being
84
a Director) shall be entitled to require discovery of or any information
respecting any detail of the Company's business, assets, property,
employees, customers or trading, or any matter which is or may be in the
nature of a trade secret, mystery of trade, or secret process which may
relate to the conduct of the business of the Company and which in the
opinion of the Directors it would be inexpedient in the interests of the
Members of the Company to communicate to the public.
135. Secrecy
Every officer of the Company or other person employed in the business of
the Company shall, when required by the Directors before entering upon his
duties, sign a declaration pledging himself to observe a strict secrecy
respecting the business of the Company and all transactions of the Company
with its customers and the state of accounts with individuals, and in
matters relating thereto and shall by such declaration pledge himself not
to reveal any of the matters which may come to his knowledge in the
discharge of his duties, except when required to do so by the Directors or
by any general meeting or by a court of law or by the person to whom such
matters relate, and except so far as may be necessary in order to comply
with any of the provisions of these Articles.
136. Destruction of records
The Company shall be entitled to destroy all instruments of transfer which
have been registered at any time after the expiration of six years from the
date of registration thereof, all notifications of change of address at any
time after the expiration of two years from the date of recording thereof
and all Share certificates and dividend mandates which have been canceled
or ceased to have effect at any time after the expiration of one year from
the date of such cancellation or cessation. It shall be presumed
conclusively in favour of the Company that every entry in the Register
purporting to have been made on the basis of an instrument of transfer or
other document so destroyed was duly and properly made and every instrument
duly and properly registered and every Share certificate so destroyed was a
valid and effective document duly and properly cancelled and every other
document hereinbefore mentioned so destroyed was a valid and effective
document in accordance with the recorded particulars thereof in
85
the books or records of the Company. Provided always that:
1 the provision aforesaid shall apply only to the destruction of a
document in good faith and without notice of any claim (regardless of
the parties thereto) to which the document might be relevant;
2 nothing herein contained shall be construed as imposing upon the
Company any liability in respect of the destruction of any document
earlier than as aforesaid or in any other circumstances which would
not attach to the Company in the absence of this Article; and
3 references herein to the destruction of any document include
references to the disposal thereof in any manner.
137. Untraced Shareholders
The Company may sell any Shares in the Company on behalf of a Holder, or
person entitled by transmission to, the Shares, if:-
1 the Shares have been in issue throughout the qualifying period and at
least three cash dividends have become payable on the Shares during
the qualifying period;
2 no cash dividend payable on the Shares has either been claimed by
presentation to the paying bank of the relative cheque or warrant or
been satisfied by the crediting of any account which the Holder has
with the Company, whether in the sole name of such Holder or jointly
with another person or persons, or by the transfer of funds to a bank
account designated by the Holder of, or person entitled by
transmission to, the Shares at any time during the relevant period;
3 the Company has not at any time during the relevant period received,
so far as the Company at the end of the relevant period is then aware,
any communication from the Holder of, or person entitled by
transmission to, the Shares;
4 the Company has caused advertisements giving notice of its intention
to sell the Shares to be published in a leading daily newspaper with a
national
86
circulation in the State and another in a newspaper circulating in the
area of the address shown in the register of the Holder of, or person
entitled by transmission to, the untraced Shares, and (in either such
case) a period of three months has elapsed from the date of
publication of the advertisement; and
5 the Company has given notice to the relevant departments of The Stock
Exchanges of its intention to make the sale.
For the purposes of this Article:
"the qualifying period" means the period of twelve years immediately
preceding the date of publication of the relevant advertisements referred
to in Article 137.4;
"the relevant period" means the period beginning at the commencement of the
qualifying period and ending on the date when all the requirements of
Article 137.1 to 137.5 have been satisfied.
For the purposes of Article 137.3 above, a statutory declaration that the
declarant is a Director of the Company or the secretary and that the
Company was not aware at the end of the relevant period of having at any
time during the relevant period received any communication from the Holder
of, or person entitled by transmission to, the Shares shall be conclusive
evidence of the facts stated in it as against all persons claiming to be
entitled to the Shares.
If, after the publication of the advertisement referred to in Article 137.4
but before the Company has become entitled to sell the Shares pursuant to
this Article, the requirements of Article 137.2 or 137.3 cease to be
satisfied, the Company may nevertheless sell those Shares after the
requirements of Article 137.1 to 137.5 have been satisfied afresh in
relation to them.
If during any relevant period further Shares have been issued in right of
those held at the beginning of that relevant period or of any previously so
issued during that relevant period and all the requirements of Article
137.2 to 137.5 have been satisfied in regard to the further Shares, the
Company may also sell the further Shares.
The manner, timing and terms of any sale of Shares pursuant to this Article
(including but not limited to the price or prices at which the same is
made) shall be
87
such as the Directors determine, based upon advice from such bankers,
brokers or other persons as the Directors consider appropriate which are
consulted by it for the purposes, to be reasonably practicable having
regard to all the circumstances including the number of Shares to be
disposed of and the requirement that the disposal be made without delay;
and the Directors shall not be liable to any person for any of the
consequences of reliance on such advice.
To give effect to any sale of Shares pursuant to this Article the Directors
may take such steps as the Directors consider are necessary or desirable in
order to effect such sale and, for this purpose, may authorise some person
to transfer the Shares in question and may enter the name of the transferee
in respect of the transferred Shares in the register notwithstanding the
absence of any Share certificate being lodged in respect thereof and may
issue a new certificate to the transferee and an instrument of transfer
executed by that person or such other method of transfer as is employed by
this person shall be as effective as if it had been executed or employed by
the Holder of, or person entitled by transmission to, the Shares. The
purchaser shall not be bound to see to the application of the purchase
moneys nor shall his title to the Shares be affected by any irregularity or
invalidity in the proceedings relating to the sale.
The Company shall account to the Holder or other person entitled to such
Shares for the net proceeds of such sale by carrying all moneys in respect
thereof to a separate account which shall be a permanent debt of the
Company and the Company shall be deemed to be a debtor and not a trustee in
respect thereof for such Holder or other person. Moneys carried to such
separate account may be either employed in the business of the Company or
invested in such investments as the Directors may think fit, from time to
time.
138. Indemnity
Subject to the provisions of and so far as may be permitted by the Acts,
every Director, Managing Director, Auditor, Secretary or other officer of
the Company shall be entitled to be indemnified by the Company against all
costs, charges, losses, expenses, and liabilities incurred by him in the
execution and discharge of his duties or in relation thereto including any
liability incurred by him in defending any proceedings, civil or
88
criminal, which relate to anything done or omitted or alleged to have been
done or omitted by him as an officer or employee of the Company and in
which judgment is given in his favour (or the proceedings are otherwise
disposed of without any finding or admission of any material breach of duty
on his part) or in which he is acquitted or in connection with any
application under any statute for relief from liability in respect of any
such act or omission in which relief is granted to him by the Court.
To the extent permitted by law, the Directors may arrange insurance cover
at the cost of the Company in respect of any liability, loss or expenditure
incurred by any Director, officer or the Auditors in relation to anything
done or alleged to have been done or omitted to be done by him or them as
Director, officer or Auditors.
________________________________________________________________________________
Names, Addresses and Descriptions of Subscribers
________________________________________________________________________________
Xx. Xxxxxxx Xxxxxxx, One
000 Xxxxxxxxx Xxxx,
Xxxxxx,
Xxxxxx 0.
Secretary
Xx. Xxxxxxx Xxxxx, One
00 Xx. Xxxxxxx Xxxx,
Xxxxxxxxx,
Xxxxxx 0.
Secretary
________________________________________________________________________________
Dated this 3rd day of November, 1986
89
Witness to the above signatures:
Xx Xxxxxxxxx Xxxxx,
Xxxxxxx House,
Wellington Quay,
Dublin 2.
90
