THE COMPANIES ACTS 1963-2001
__________________________________________
COMPANY LIMITED BY SHARES
__________________________________________
ARTICLES OF ASSOCIATION
- of -
HERTAL ACQUISITIONS PLC
Incorporated on 20 November 2002
__________________________________________
ADOPTED BY SPECIAL RESOLUTION
Passed on o 2003
__________________________________________
CONTENTS
Clause Page
1 Interpretation 1
2 Table A 8
3 Public Limited Company 8
4 Share Capital 8
5 Share Redemption and Purchase 8
6 Provisions applying on every transfer of Ordinary Shares 11
7 Permitted transfers of Ordinary Shares 12
8 Pre-Emption Rights 14
9 Drag-along rights 16
10 Compulsory transfer 18
11 General provisions 20
12 Facility Agreements 25
13 Excess Return 25
14 Certain further provisions 26
15 Tag Along Rights 26
16 Deferred Shares 26
THE COMPANIES ACTS 1963-2001
__________________________________________
COMPANY LIMITED BY SHARES
__________________________________________
ARTICLES OF ASSOCIATION
- of -
HERTAL ACQUISITIONS PLC
__________________________________________
ADOPTED BY SPECIAL RESOLUTION
Passed on o2003
__________________________________________
1 Interpretation
1.1 In these Articles:-
the Act: means the Companies Act 1963 including any statutory
modification or re-enactment for the time being in force;
the Acts: means the Companies Acts 1963 to 2001 and every
statutory modification or re-enactment thereof for the time being
in force;
Alchemy: means Alchemy Partners (Guernsey) Limited;
Asking Price: means the price specified in a Sale Notice;
Board: means the board of directors of the Company as constituted
from time to time;
business days: means a day (other than a Saturday or Sunday) on
which banks and financial markets are open for business in both
London and Dublin;
Completion Date: means [ ] 2003;
Connected Transferee: means any person to whom an Individual
Member shall have transferred shares pursuant to Article 7.3 or
7.4, whether directly or through a series of two or more
transfers;
Deferred Shares: deferred redeemable ordinary shares of US$0.01
each;
the Drag Along Target Investor Threshold: means the greatest of
(i) Investor Cost multiplied by two; (ii) such amount as gives
the Investors an Investors' IRR of 30% (calculated on the basis
that Investors' Cash Flow is determined in US Dollars); and (iii)
such amount as gives the Investors an Investors' IRR of 25%
(calculated on the basis that Investors' Cash Flow is determined
in US Dollars but is converted into Pounds Sterling on the day of
expenditure or receipt using the US Dollar/Pounds Sterling spot
exchange rate applicable to that day to give an Investor's IRR
based on sterling expenditures and receipts, save that the
Investor Cost for the day of Completion shall be (pound)66.93m);
Excess Return: the amount by which the Investor Return exceeds
the Target Investor Return;
Excluded Shareholder: an Ordinary Shareholder (or the holder of
any rights to subscribe for Ordinary Shares):-
(i) who is an employee or consultant of the Company or any
of its 51% subsidiaries and who has been served with
notice of termination in respect of his employment; or
(ii) who was, but has ceased to be, an employee of the
Company or any of its 51% subsidiaries;
(iii) who is a Connected Transferee of a person referred to
in (i) or (ii) above;
Facility Agreements: means the Senior Facility Agreement and the
Mezzanine Facility Agreement;
Family Members: means the spouse, parents and every child and
remoter descendant of an Individual Member (including
stepchildren and adopted children);
Family Trust: in relation to any Individual Member, means trusts
established by that Individual Member provided that only such
Individual Member and/or Family Member of that Individual Member
are capable of being beneficiaries thereof;
Income Distribution: the distribution of income by the Company to
Ordinary Shareholders whether by way of dividend or otherwise;
Individual Member: means an Ordinary Shareholder who is an
individual (or is LLT);
Intercreditor Deed: shall have the same meaning as in the Senior
Facility Agreement;
Investor Director: means a director appointed as such under the
Shareholders Agreement;
the Investors' Cash Flow: the amount for each day d comprised in
the period from the Completion Date to the Realisation Date
(inclusive) equal to the difference, if any, between (a) and (b)
below (the Investors' Cash Flow being
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negative if (a) exceeds (b) and positive if (b) exceeds (a)),
where in respect of each day d in such period there shall be
ascertained:
(a) the Investor Cost; and
(b) the receipts on such day d comprising the following
receipts:-
(i) cash amounts received by the Investors from the
Company on an Income Distribution in respect of
the Ordinary Shares or any other shares held by
them;
(ii) cash amounts received by the Investors from the
Company on a Return of Capital in respect of the
Ordinary Shares or any other shares held by them;
(iii) any cash amounts received by the Investors from
the Company or any of its subsidiaries in respect
of the Loan Notes held by the Investors including
any redemption payments in respect of such Notes,
repayments or purchases of such Notes;
(iv) the Investors' Proportion of Realisation Proceeds;
(v) any other cash receipt of the Investors from any
sale, redemption, repayment, income or capital
distribution or release of or interest on any
Ordinary Shares, Loan Notes or other shares,
security or financial instrument of the Company or
any of its subsidiaries or holding companies or
any of their subsidiaries;
(vi) any cash receipt arising from the realisation of
non-cash assets which (had such assets been
received by the Investors in the form of cash)
would have fallen within the categories referred
to in paragraphs (b)(i) to (v) above;
and so that references to receipts shall be deemed to be
references to amounts received and the date of receipt shall
be the date of actual receipt of cleared funds into the
Investors' receiving bank account (or the closest estimate
thereof in the case of amounts receivable);
Investor Cost: means the amount subscribed and paid up by the
Investors on the date of adoption of these Articles in respect of
Ordinary Shares and Loan Notes plus any additional amounts
invested by the Investors in the Company and/or its subsidiaries,
holding companies or any of their subsidiaries from time to time
plus the aggregate of the direct costs of the Investors
attributable to making and/or realising (in whole or in part)
their investment in Ordinary Shares and Loan Notes and any other
shares, security or financial instrument of the Company, any of
its subsidiaries or holding companies or any of their
subsidiaries;
Investor Return: means the aggregate of:-
(i) cash amounts received by the Investors from the Company
on an Income Distribution in respect of the Ordinary
Shares held by them or any other shares held by them;
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(ii) cash amounts received by the Investors from the Company
on a Return of Capital in respect of the Ordinary
Shares held by them or any other shares held by them;
(iii) cash amounts received by the Investors from the Company
or any of its subsidiaries in respect of Loan Notes
held by the Investors including any redemption payments
in respect of such Notes, repayments or purchases of
such Notes;
(iv) the Investors' Proportion of Realisation Proceeds;
(v) any other cash receipt of the Investors from any sale,
redemption, repayment, income or capital distribution
or release of or interest on any Ordinary Shares, Loan
Notes or other shares, security or financial instrument
of the Company or any of its subsidiaries or holding
companies or any of their subsidiaries; or
(vi) any cash receipt arising from the realisation of
non-cash assets which (had such assets been received by
the Investors in the form of cash) would have fallen
within the categories referred to in paragraphs (i) to
(v) above;
less the aggregate of the direct costs of the Investors
attributable to making and/or realising (in whole or in part)
their investment in Ordinary Shares and Loan Notes and any other
shares, security or financial instrument of the Company, any of
its subsidiaries or holding companies or any of their
subsidiaries;
Investors' Proportion of Realisation Proceeds: the amount of
Realisation Proceeds attributable to the Ordinary Shares and Loan
Notes (or any other shares or securities of the Company, any of
its subsidiaries or holding companies or any of their
subsidiaries) held by the Investors;
Investors' IRR: means the internal rate of return (expressed as a
percentage) expressed as an annual percentage "x", where "x" is
calculated as follows:-
(SIGMA) Cd = 0
-----------
(1 + x)n
Where:-
Cd = the Investors' Cash Flow occurring on that day d
x = the discount rate such that, for example 30% is
entered into the formula as 0.3;
n = (d-1)
-----
365
(SIGMA) = the sum of the series where d = 1 to S (where d is
1 in respect of the Completion Date, 2 in respect
of the day after the
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Completion Date and 366 on the first anniversary
of the Completion Date)
S = the number of days which have elapsed between the
Completion Date and the Realisation Date
the Investors: means Alchemy, MSD Capital and their respective
permitted transferees for as long as they, or their respective
nominees, are the holders of Ordinary Shares;
Listing: means the listing of the Company's, or any holding
company's, entire issued share capital on a recognised investment
exchange in respect of which a recognition order has been made
under the Financial Services and Markets Act 2000 of the United
Kingdom, section 290 or a listing of its shares (or of depository
receipts representing the same) on any U.S. national securities
exchange;
LLT: means Lifetime Learning Limited;
Loan Notes: means the Discounted Guaranteed Unsecured Loan Notes
2009 of Hertal (Investments) Limited constituted by a Loan Note
Instrument as at the Completion Date and such other loan notes
which may be issued pursuant to clause 3.4 of the Shareholders
Agreement;
Mezzanine Facility Agreement: means the agreement dated [ ] 2003
entered into by the Company (1), Hertal (Investments) Limited
(2), and RBS Mezzanine Limited and Barclays Leveraged Finance (as
Joint Lead Mezzanine Arrangers), RBS Mezzanine Limited (as
Mezzanine Facility Agent) and Barclays Bank PLC (as Security
Agent) (3) and the financial institutions listed therein
(including Barclays Bank PLC and RBS Mezzanine Limited) as
Mezzanine Lenders (4) under which there is made available to the
Company a mezzanine facility of up to $45,000,000 together with
all documents to be delivered or executed in connection
therewith;
Mezzanine Warrant Instrument: has the meaning ascribed to it in
the Shareholders Agreement;
MSD Capital: means MSD Portfolio L.P. - Investments acting by its
general partner MSD Capital, L.P. for its own account and as
nominee for other accounts managed by MSD Capital, L.P.;
Nominated Alchemy Director: means the Investor Director appointed
as such under the Shareholders Agreement;
Offer: has the meaning ascribed to it in the Shareholders
Agreement;
Ordinary Shares: means ordinary shares of US$0.01 each in the
capital of the Company and "Ordinary Shares" means any one of
them;
Ordinary Shareholders: means the holders of Ordinary Shares;
permitted transferee: any person to whom an Ordinary Shareholder
transfers shares in accordance with Article 7;
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Realisation: a Sale or Listing;
Realisation Date means:
(a) in the case of a Listing, the date on which dealings
commence in respect of the shares the subject of the
Listing; or
(b) in the case of a Sale, completion of the Sale;
Realisation Proceeds means:
(a) in the event of a Listing, the value placed on all the
Ordinary Shares or other shares (or shares in a holding
company of the Company) (excluding, for the avoidance of
doubt, any shares to be issued by the Company or its holding
company on the Listing to raise additional finance for the
Company);
(b) in the event of a Sale, the value of the consideration
payable on completion of the Sale in respect of all the
Ordinary Shares or other shares, provided that if the
consideration for the Sale comprises wholly or in part the
issue of securities (not accompanied by a cash alternative)
(aa) if the securities will rank pari passu with a class of
securities already publicly traded, the value of such
securities determined by reference to the closing mid market
price of the securities on the latest practical day prior to
the Realisation Date, or (bb) if the securities are not of
such a class, the value of such securities as determined by
an independent investment bank (selected by the Company) in
a certificate obtained for the purpose and addressed to the
Company;
Relevant Shares: Ordinary Shares held by LLT or (so far as the
same remain held by a Family Member or the trustees of any Family
Trusts) the Ordinary Shares originally transferred to the Family
Member or trustees in question and any additional Ordinary Shares
issued to LLT or such Family Member or trustees by way of
capitalisation or acquired by LLT or such Family Member or
trustees in exercise of any right or option granted or arising by
virtue of the holding of the Ordinary Shares or any of them or
the membership thereby conferred;
Remuneration Committee: the committee referred to in Clause 7.6.2
of the Shareholders Agreement;
Return of Capital: the return of capital by the Company to
Ordinary Shareholders whether by liquidation or otherwise;
Sale:
(a) the sale of the whole of the issued Ordinary Shares to a
single purchaser (or to one or more purchasers as part of a
single transaction); or
(b) the sale of less than the whole of the issued Ordinary
Shares in circumstances where the Company has received
advice satisfactory to it that the purchaser or purchasers
is or are (or will upon the agreement or agreements for such
sale becoming unconditional be) entitled to acquire
6
that part of the issued Ordinary Shares not agreed to be
acquired pursuant to such agreement or agreements in
accordance with the provisions of s204 of the Act or
pursuant to Article 9;
Sale Notice: means a written notice served by a Selling
Shareholder on the Company in accordance with Article 8.1;
Selling Shareholder: means an Ordinary Shareholder other than an
Excluded Shareholder who wishes to transfer Ordinary Shares or
any beneficial interest therein other than a transfer to which
Article 7 applies;
Senior Facility Agreement: means the agreement dated [ ] 2003
entered into by the Company (1), Hertal (Investments) Limited (2)
and The Royal Bank of Scotland plc, Barclays Leveraged Finance
(as Joint Arrangers) and Barclays Bank PLC (as Facility Agent and
Security Agent) (3) and the financial institutions listed therein
(including Barclays Bank PLC and The Royal Bank of Scotland plc)
as Lenders (4) under which The Royal Bank of Scotland plc and
Barclays Bank plc have made available to the Company term loan
and working capital facilities of up to $135,000,000 together
with all documents to be delivered or executed in connection
therewith;
Shareholders Agreement: means the agreement of o 2003 made
between, inter alios, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇ ▇▇▇▇▇▇▇▇") (1) LLT
(2) ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇ ("▇▇ ▇'▇▇▇▇▇▇▇▇▇") and others (3); the
Investors (4); the Company (6) Hertal (Investments) Limited (6)
and RBSM (Investments) Limited and Barclays RVCF Investments
Limited (7) as amended from time to time;
shares: means shares in the capital of the Company of whatever
class;
Specified Shareholders: one or more Shareholders who on their own
or together meet the requirements for exercising rights under
Article 9 pursuant to the provisions of Articles 9.2.1, 9.2.2 and
9.2.3;
the Target Investor Return: means the amount of the Investor Cost
multiplied by three;
the Underwriting Arrangements: the arrangements relating to the
partial underwriting of the partial share alternative contained
in the Offer; and
Warrantholder: as defined in the Mezzanine Warrant Instrument;
and
Warrants: has the meaning ascribed to it in the Shareholders
Agreement.
1.2 Words and expressions defined in the Act have the same meanings
in these Articles, unless inconsistent with the context.
1.3 Any reference to 51% subsidiaries is to be construed in
accordance with section 9(1)(a) of the Taxes Consolidation Act,
1997.
1.4 The renunciation of a right to be allotted shares shall be
treated as if it were a transfer of those shares and therefore
shall be governed by Articles 6 to 9.
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1.5 Notwithstanding any other provisions contained herein these
Articles shall be subject to the terms of the Intercreditor Deed
and the Facility Agreements.
2 Table A
2.1 The regulations contained or incorporated in Part I of Table A in
the First Schedule to the Act ("Part I of Table A") and in
regulation 7 of Part II of Table A in the First Schedule to the
Act shall apply to the Company, save insofar as they are varied
or excluded by, or are inconsistent with, the following Articles.
2.2 In regulation 1 of Part I of Table A, the words "and in the
Articles of Association adopting the same" shall be inserted
after the word "regulations" where it first appears in the last
paragraph of that Regulation.
2.3 The first sentence of regulation 24 and regulations 75, 79, 92 to
97, 91, 103, 84, 133 and 138 of Part I of Table A do not apply.
3 Public Limited Company
The Company is a public limited company.
4 Share Capital
The share capital of the Company at the date of adoption of these
Articles is US$1,474,789.98 divided into 143,668,998 Ordinary
Shares and 3,810,000 Deferred Shares.
5 Share Redemption and Purchase
5.1 Redemption
Subject to the provisions of the Acts, any shares may be issued
or converted 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 before the issue or conversion of the
shares may determine, and such shares may subsequently be
redeemed or purchased by the Company
5.2 Share Purchase
The Company (and any subsidiary for the time being of the
Company) is authorised to purchase any shares of and in the
Company (including any redeemable shares for the time being) in
accordance with the provisions of Part XI of the Companies Act,
1990 (the "1990 Act") PROVIDED THAT:
5.2.1 no purchase by the Company of its own shares will take place
unless they have been sanctioned by the Company by special
resolution in general meeting and otherwise in accordance with
Sections 212 to 217 of the 1990 Act;
5.2.2 for so long as there are any convertible shares or debentures in
issue, no purchase by the Company of its own shares will take
place unless it is sanctioned by a resolution passed at a
separate class meeting of the holders of any such convertible
shares or debentures;
8
5.2.3 the minimum price which may be paid for the shares purchased
pursuant to this Article will be the par value thereof; and
5.2.4 if purchases are by tender, tenders will be available to all
shareholders alike.
5.3 Any shares purchased in accordance with paragraph 5.2 of this
Article:
5.3.1 may be cancelled by the Company in which case the provisions of
Section 208 of the 1990 Act shall apply as if the shares had been
cancelled on redemption; and/or
5.3.2 may be held by the Company as treasury shares in which case the
provisions of Sections 209 (1) to 209 (4) inclusive of the 1990
Act shall apply; and/or
5.3.3 subject to sub-Sections (5) and (6) of Section 209 of the 1990
Act may be re-issued as shares of any class or classes.
5.4 Share Issues
5.4.1 Save as provided in regulations 130 and 131 of Part I of Table A
(relating to bonus issues) and in Article 5.4.2, no share in the
capital of the Company will be issued except as follows:
5.4.1.1 the shares shall be offered for subscription to the
Ordinary Shareholders in proportion to the numbers of
Ordinary Shares then held by them respectively for cash
and in all respects upon the same terms per share;
5.4.1.2 such offers shall be made by notice to each of the
Ordinary Shareholders stating the total number of
shares so offered, the number thereof offered to that
Ordinary Shareholder, the price per share, the date for
subscription and the date (being not less than 14 days
after the date upon which the notice is given) by which
the offer, if not accepted, will be deemed to have been
rejected;
5.4.1.3 any shares in respect of which such an offer to
Ordinary Shareholders is accepted shall be allotted on
the basis of such offer and such Ordinary Shareholder
will be obliged to subscribe accordingly;
5.4.1.4 if an Ordinary Shareholder subscribes for all the
shares so offered to him or it and other Ordinary
Shareholders reject or are deemed to reject the offer
made to them, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇'▇▇▇▇▇▇▇▇▇ and the
Investors (together the "Primary Investors") may within
7 days after such subscription subscribe pro rata to
the shares in the capital of the Company held by them
for the shares in respect of which the offer was
rejected as aforesaid upon the terms of the offer;
5.4.1.5 if any of the Primary Investors reject any offer made
to them pursuant to Article 5.4.1.4 then any accepting
Primary Investors may subscribe in whole or in part for
any rejected offer by a
9
Primary Investor, in the case of competition between
any accepting Primary Investors, pro rata to their then
respective shareholdings in the Company, and thereafter
the Company may procure that any other person
subscribes for any remaining shares provided that such
other person first entered into an agreement with the
Ordinary Shareholders in such terms (if any) as is
required pursuant to the Shareholders Agreement; and
5.4.1.6 the benefit of an offer to allot shares or of the
contract arising out of the acceptance thereof cannot
be assigned or transferred by the offeree.
For the purposes of this Article 5.4.1 each holder of Warrants
shall be deemed to be an Ordinary Shareholder as if each had
exercised his or their Warrants in full.
5.4.2 The provisions of Article 5.4.1 shall not apply to:-
5.4.2.1 the grant in accordance with the terms of the
Shareholders Agreement of options to subscribe for
Ordinary Shares pursuant to the share option scheme of
the Company from time to time adopted in accordance
with the terms of the Shareholders Agreement and in
force and the issue of such Ordinary Shares upon the
exercise of any such option;
5.4.2.2 the issue of any Ordinary Shares pursuant to the Offer
and/or pursuant to the Underwriting Arrangements; and
5.4.2.3 the issue of Warrants pursuant to the Mezzanine Warrant
Instrument and the allotment and issue of Ordinary
Shares pursuant to those Warrants or otherwise pursuant
to rights and/or obligations under the Mezzanine
Warrant Instrument;
5.4.2.4 an issue of shares in the capital of the Company which
is approved in accordance with Clause 8.1 of the
Shareholders Agreement provided that if such issue is
an issue of shares to a Related Party of any of the
Investors, ▇▇ ▇▇▇▇▇▇▇▇ or ▇▇ ▇'▇▇▇▇▇▇▇▇▇ (in
circumstances other than where there exists a Default
or a Look Forward Default (as such terms are defined in
the Shareholders Agreement)) the terms of such issue
are not oppressive to the other Ordinary Shareholders
or otherwise in disregard of their interests as
members.
For the purpose of Article 5.4.2.4 above:-
(i) a "Related Party" of a person shall mean a person
or persons:-
(a) who in relation to him is a connected person,
as defined in section 10 of the Taxes
Consolidation Act,, 1997; or
(b) with whom he is acting in concert, as defined
in the Irish Takeover Panel Act, 1997 (and
10
Alchemy's role or the role of any of its
associates as investment adviser shall not be
deemed to make its clients act in concert);
and
(ii) the phrases "oppressive" and "otherwise in
disregard of their interests as members" shall
have the same meaning such phrases have for the
purposes of Section 205(1) of the Act.
5.4.3 Subject as provided in Article 5.4.1, 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 Companies (Amendment) Act, 1983) up to an
amount equal to the authorised but as yet unissued share capital
of the Company as at the Completion Date, and such authority will
expire five years from the Completion Date 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. Section 23(1) of the Companies
(Amendment) Act, 1983 is hereby excluded in its application in
relation to all allotments by the Company of equity securities
(as defined for the purposes of that section) referred to in
Articles 5.4.1 and 5.4.2 pursuant to the authority conferred by
the first sentence of this Article 5.4.3.
6 Provisions applying on every transfer of Ordinary Shares
6.1 Shareholders are not entitled to transfer any interest in
Ordinary Shares and the directors may not register a transfer of
Ordinary Shares by any such transferring Shareholder unless:-
6.1.1 it is expressly permitted by Article 7 or has been made in
accordance with Articles 8, 9, 10 or 15 (as appropriate); and
6.1.2 (if required pursuant to the Shareholders Agreement) the proposed
transferee has entered into an agreement to be bound by the
Shareholders Agreement in the form required by the Shareholders
Agreement.
6.2 In the event of an infringement of this Article, the relevant
shareholder shall be bound to give a Sale Notice in accordance
with Article 8 in respect of all the Ordinary Shares in which he
is interested.
6.3 For the purpose of ensuring that a transfer of Ordinary Shares is
permitted under these Articles or that there has been no breach
of these Articles (inter alia as referred to in Article 6.2), the
directors (acting by a majority) may from time to time require
any member or the legal personal representative of any deceased
member or any person named as transferee in any transfer lodged
for registration to furnish to the Company such information and
evidence as the directors may think fit regarding any matter
which they may deem relevant to such purpose. Failing such
information or evidence being furnished to the satisfaction of
the directors within a reasonable time after request, the
directors shall be entitled to refuse to register the transfer in
question or, in case no other transfer is in question, to require
by notice in writing that a Sale Notice be given in respect of
the Ordinary Shares concerned. If such information or evidence
discloses that a
11
Sale Notice ought to have been given in respect of any shares,
the directors may by notice in writing require that a Sale Notice
be given in respect of the Ordinary Shares concerned. In any case
where the directors have duly required a Sale Notice to be given
in respect of any Ordinary Shares and such Sale Notice is not
duly given within a period of 14 days, or such longer period as
the directors may allow for the purpose, such Sale Notice shall
(except and to the extent that a transfer permitted under these
Articles of any such Ordinary Shares shall have been lodged) be
deemed to have been given on the date after the expiration of the
said period as the directors may by resolution determine and the
provisions of these Articles relating to Sale Notices shall take
effect accordingly save that the Asking Price shall be calculated
as provided in Article 10.4.1.
7 Permitted transfers of Ordinary Shares
7.1 A shareholder which is a body corporate may transfer Ordinary
Shares to a member of the same group (meaning a subsidiary or
holding company of the body corporate or a subsidiary of a
holding company of the body corporate) if the transferee gives an
undertaking to the Company that if the transferee ceases to be a
member of the same group, all its shares in the Company will,
before the cessation, be transferred to another member of the
same group.
7.2 A shareholder who holds Ordinary Shares as nominee or trustee for
a limited partnership or unit trust or a shareholder that is a
limited liability company or limited partnership which is
primarily a vehicle for institutional investors or high net worth
individuals may transfer those Ordinary Shares:-
7.2.1 to another nominee or trustee for the limited partnership,
limited liability company or unit trust;
7.2.2 on a distribution in kind under the relevant partnership
agreement or trust deed, to the partners of the limited
partnership or their nominees or the holders of units in the unit
trust or their nominees or on a distribution in kind under the
relevant limited liability company agreement to the members of
the limited liability company or their nominees; or
7.2.3 to a limited partnership, unit trust or investment trust, limited
liability company or investment trust (or to a nominee or trustee
for any of the foregoing) which is primarily a vehicle for
institutional investors or high net worth individuals and which
is advised or managed by the adviser or manager of the former
limited partnership or unit trust.
7.3 ▇▇ ▇▇▇▇▇▇▇▇ and ▇▇ ▇'▇▇▇▇▇▇▇▇▇ may each transfer Ordinary Shares
held by them for bona fide tax planning reasons provided that
they have obtained the prior written approval of the Nominated
Alchemy Director in the case of ▇▇ ▇'▇▇▇▇▇▇▇▇▇ and the prior
written approval of the Board in the case of ▇▇ ▇▇▇▇▇▇▇▇ (such
consent not to be unreasonably withheld or delayed in either
case) save that no such approval shall be given in circumstances
where a transfer of Ordinary Shares pursuant to this Article 7.3
would give rise to a Change of Control (as such term is defined
in the Senior Facility Agreement).
7.4 An Individual Member (not being a holder of the shares concerned
as a trustee) may at any time transfer any Ordinary Shares:-
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7.4.1 to a Family Member of his; or
7.4.2 to trustees to be held on Family Trusts applicable to him
provided, in each case, that the prior written consent of the
Nominated Alchemy Director has been obtained (not to be
unreasonably withheld or delayed) and provided further that the
aggregate number of shares so transferred does not exceed 20% of
the aggregate of the shares held by such Individual Member on or
immediately after the Completion Date.
7.5 Where shares have been transferred under Article 7.4.2 or under
Articles 7.5.1 or 7.5.2 to trustees of Family Trusts, the
trustees and their successors may transfer all or any of the
Relevant Shares as follows:-
7.5.1 on any change of trustees, the Relevant Shares may be transferred
to the trustees for the time being of the Family Trusts
concerned;
7.5.2 pursuant to the terms of such Family Trusts or in consequence of
the exercise of any power or discretion vested in the trustees or
any other person, all or any of the Relevant Shares may be
transferred to the trustees for the time being of any other
Family Trusts of the same Individual Member or deceased or former
Individual Member or to any Family Member of the relevant
Individual Member or deceased or former Individual Member who has
become entitled to the Relevant Shares.
7.6 In the event that (i) a person holding Relevant Shares as a
result of the provisions of Article 7.4 ceases to be a Family
Member of the Individual Member concerned, or (ii) any Relevant
Shares held either by trustees cease to be held on Family Trusts,
or (iii) LLT ceases to be within the control of the person who
controlled LLT on the Completion Date (otherwise, in each case,
where an authorised transfer of those shares has been made) and
the Relevant Shares are not transferred to a permitted transferee
under this Article 7 within 10 days of such cessation, the
shareholder holding the shares shall notify the directors in
writing that that event has occurred and the shareholder shall be
bound, if and when required in writing by the directors to do so,
to give a Sale Notice in respect of the Relevant Shares (save
that the Asking Price shall be calculated in accordance with
Article 10.4.1), such Sale Notice, once given, to be irrevocable
and the provisions of Article 8 shall apply in respect of the
Relevant Shares.
7.7 Transfers (including any deemed transfers) may be made by ▇▇
▇'▇▇▇▇▇▇▇▇▇ and persons to whom he may have transferred Ordinary
Shares pursuant to Articles 7.3 or 7.4 to the Investors pursuant
to rights contained in Clause 4.15 of the Shareholders Agreement.
7.8 Transfers may be made by ▇▇ ▇'▇▇▇▇▇▇▇▇▇ and/or ▇▇ ▇▇▇▇▇▇▇▇ in
accordance with Clause 10.4 of the Shareholders Agreement.
7.9 Any Ordinary Shareholder who is not (i) an employee or consultant
of the Company or one of its 51% subsidiaries, (ii) ▇▇
▇'▇▇▇▇▇▇▇▇▇ (or any of his permitted transferees), (iii) ▇▇
▇▇▇▇▇▇▇▇ (or any of his permitted transferees), (iv) LLT, or (v)
an Investor (in each case a "Restricted Shareholder") may
transfer in any calendar year up to 70,000 Ordinary Shares
registered in their name to any person whose identity is approved
in writing in advance by the
13
Board. Such transfers may be made by giving notice to the Company
of the intended transfer and the proposed identity of the
transferee. The Board will, within 30 business days of receipt of
such notice, give written notice to the proposed transferor of
whether such transfer is approved. The Board shall be entitled to
refuse to register any proposed transferee who is a competitor of
the Company or any of its subsidiaries, a person with whom the
Company or any of the subsidiaries currently has or has
previously had a material business relationship, has an aggregate
shareholding in the Company at that time in excess of 1% of the
issued share capital of the Company (but ignoring for these
purposes ▇▇ ▇'▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ and the Investors) or is any
other person whom the Board believes it is not in the best
interests of the Company to have as a shareholder.
7.10 Transfers may be made by any of ▇▇ ▇'▇▇▇▇▇▇▇▇▇ (or his permitted
transferees), ▇▇ ▇▇▇▇▇▇▇▇ (or his permitted transferees) or the
Investors pursuant to Clause 10.5 of the Shareholders Agreement.
7.11 Any holder of a beneficial interest or interests in Ordinary
Shares who is not a Restricted Shareholder ("Beneficial
Transferor") shall be entitled to transfer such beneficial
interest or interests in Ordinary Shares to another person who
is, at the time of the transfer, already a beneficial holder of
Ordinary Shares ("Beneficial Transferee") subject to the
satisfaction of the following conditions:-
7.11.1 both the Beneficial Transferor and the Beneficial Transferee
shall be beneficial holders of Ordinary Shares on the date upon
which the Offer becomes or is declared unconditional in all
respects ("Settlement Date");
7.11.2 any such transfer occurs after the Settlement Date;
7.11.3 the Ordinary Shares in respect of which the Beneficial Transferor
is proposing to transfer the beneficial interest were registered
in the name of Davy Nominees Limited on the Settlement Date and
immediately prior to the proposed transfer;
7.11.4 the Ordinary Shares in respect of which the Beneficial Transferee
is the beneficial owner were registered in the name of Davy
Nominees on the Settlement Date and on the date of the proposed
transfer; and
7.11.5 there is no change in the registered holder of such Ordinary
Shares as a result of the proposed transfer.
8 Pre-Emption Rights
8.1 A Selling Shareholder shall serve a Sale Notice on the Company
stating the number of shares he wishes to transfer (the "Sale
Shares") and the Asking Price per Sale Share.
8.2 The Selling Shareholder may state in the Sale Notice that he is
only willing to transfer all the Sale Shares (a "total transfer
condition"), in which case no Sale Shares can be sold unless
offers are received for all of them.
8.3 The Sale Notice shall make the Company the agent of the Selling
Shareholder for the sale of the Sale Shares on the following
terms, which the Company shall
14
notify to the other Ordinary Shareholders within seven days of
receiving the Sale Notice:-
8.3.1 the price for each Sale Share is the Asking Price;
8.3.2 the Sale Shares are to be sold free from all liens, charges and
encumbrances together with all rights attaching to them;
8.3.3 each of the other Ordinary Shareholders (except those who are
Compulsory Sellers for the purposes of Article 10) is entitled to
buy the Sale Shares in proportions reflecting, as nearly as
possible, the nominal amount of their existing holdings of
Ordinary Shares; an Ordinary Shareholder is entitled to buy fewer
Sale Shares than his or its proportional entitlement;
8.3.4 Ordinary Shareholders may offer to buy any number of the Ordinary
Shares that are not accepted by the other Ordinary Shareholders
on the first offer (the "Excess Shares");
8.3.5 any total transfer condition specified pursuant to Article 8.2.
8.4 21 days after the Company's despatch of the terms for the sale of
the Sale Shares (the "Closing Date"):-
8.4.1 the Sale Notice shall become irrevocable;
8.4.2 an Ordinary Shareholder who has not responded to the offer in
writing shall be deemed to have declined it; and
8.4.3 each offer made by an Ordinary Shareholder to acquire Sale Shares
shall become irrevocable.
8.5 If any Ordinary Shareholder declines (or is deemed to have
declined) the offer (in whole or in part), each Ordinary
Shareholder who offered to buy Excess Shares shall be entitled to
a number of Excess Shares reflecting, as nearly as possible, the
number of Excess Shares he offered to buy as a proportion of the
total number of Excess Shares for which offers were received.
8.6 Within seven days after the Closing Date, the Company shall
notify the Selling Shareholder and the Ordinary Shareholders who
offered to buy Sale Shares of the result of the offer and, if any
Sale Shares are to be sold pursuant to the offer:-
8.6.1 the Company shall notify the Selling Shareholder of the names and
addresses of the Ordinary Shareholders who are to buy Sale Shares
and the number to be bought by each;
8.6.2 the Company shall notify each Ordinary Shareholder of the number
of Sale Shares he is to buy; and
8.6.3 the Company's notices shall state a place and time, between seven
and 14 days later, on which the sale and purchase of the Sale
Shares is to be completed.
8.7 If the Selling Shareholder does not transfer all or any of the
Sale Shares in accordance with Article 8.6, the directors may
authorise any director to transfer
15
the Sale Shares on the Selling Shareholder's behalf to the buying
Ordinary Shareholders concerned against receipt by the Company of
the Asking Price per Sale Share. The Company shall hold the
Asking Price in trust for the Selling Shareholder without any
obligation to pay interest. The Company's receipt of the Asking
Price shall be a good discharge to the buying Ordinary
Shareholder. The directors shall then authorise registration of
the transfer once appropriate stamp duty has been paid. The
defaulting Selling Shareholder shall surrender his share
certificate for the Sale Shares to the Company and, forthwith on
such surrender, the Company shall pay to him or it the Asking
Price for the Sale Shares.
8.8 If, by the Closing Date, the Company has not received offers for
all the Sale Shares, the Selling Shareholder may within the next
two months transfer the Sale Shares for which offers were not
received (or, if the Sale Notice contained a total transfer
condition, all the Sale Shares) to any person at no less than the
Asking Price per Sale Share, with any other terms being no more
favourable than those in the Sale Notice.
8.9 If a Selling Shareholder becomes an Excluded Shareholder the
directors may at any time thereafter by notice in writing to such
Selling Shareholder revoke any Sale Notice given by such Selling
Shareholder prior to that event and the provisions of Article 10
shall then apply, provided that such revocation shall be without
prejudice to any sale of Sale Shares the subject of a Sale Notice
completed prior to such revocation.
9 Drag-along rights
9.1 In the event that all Specified Shareholders procure that a
member (or members) of a purchasing group makes an offer ("the
Drag Offer") open for acceptance for at least three business days
("the Acceptance Period") to purchase all or (in the
circumstances referred to in Article 9.2.3 only) some of the
issued Ordinary Shares and Warrants at the same consideration
(and in the same form of consideration) per Ordinary Share or
Warrant (whether (subject to Article 9.2.3 (ii)) in cash,
securities or otherwise or in any combination) which the
Specified Shareholders have accepted or will accept in respect of
their entire holding of Ordinary Shares (other than where the
Specified Shareholders are persons referred to in Article 9.2.3
and the Drag Offer does not extend to the shares held by the
Specified Shareholders), then following the expiry of the
Acceptance Period the Specified Shareholders (or any of them)
shall give notice in writing to all (but not some) of the
Ordinary Shareholders and Warrantholders to whom the Drag Offer
was made who have not accepted the Drag Offer within the
Acceptance Period ("the Remaining Shareholders") requiring them
within 2 business days of the date of the notice to transfer all
(but not some) of their holdings of Ordinary Shares and/or
Warrants (as the case may be) to the specified member or members
of the purchasing group. Written notice under this Article 9.1
shall be accompanied by all documents required to be executed by
the relevant Remaining Shareholder to give effect to the required
transfer.
9.2 For the purposes of Article 9.1, Specified Shareholders shall be
Ordinary Shareholders who meet the condition or conditions
referred to in one of Articles 9.2.1, 9.2.2 and 9.2.3 as
follows:-
16
9.2.1.1 Ordinary Shareholders holding in aggregate more than
75% of the Ordinary Shares (such shareholders to
include (in each case if they are still Ordinary
Shareholders at that time) the holders (in the case of
the Investors) of the majority of the Ordinary Shares
held by the Investors, ▇▇ ▇▇▇▇▇▇▇▇ and ▇▇ ▇'▇▇▇▇▇▇▇▇▇);
and
9.2.1.2 where the purchaser or members of the purchasing group
is a Related Party (as defined in Article 5.4.2.4) of
the Specified Shareholders or any of them, the
purchaser or members of the purchasing group have
obtained an opinion from a reputable investment bank
addressed to the Remaining Shareholders stating that
the terms of the Drag Offer are fair and reasonable;
in which case the Drag Offer shall be made to all the Ordinary
Shareholders and Warrantholders (including the Specified
Shareholders) and the Specified Shareholders shall accept the
Drag Offer;
9.2.2 an Investor or Investors holding a majority of all the Ordinary
Shares held by the Investors in circumstances in which:-
(i) the Drag Offer is made and the notice on the Remaining
Shareholders under Article 9.1 is served after the
fifth anniversary of the Completion Date; and
(ii) the amount being received by the Investors on such sale
in respect of their Loan Notes does not exceed the
amount they would have been entitled to receive if a
redemption of the Loan Notes took place on the date on
which the Drag Offer completed; and
(iii) none of the members of the purchasing group is an
entity in which Alchemy has a direct or indirect
interest representing more than 5% of the economic
value of such entity (unless any such interest is
obtained pursuant to such Drag Offer and is made
available pro rata to all Ordinary Shareholders);
in which case the Drag Offer shall be made to all Ordinary
Shareholders and Warrantholders (including the Specified
Shareholders) and the Specified Shareholders shall accept the
Drag Offer;
9.2.3 either or both of ▇▇ ▇'▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇ in circumstances
where:-
(i) the Drag Offer is made and the notice on the Remaining
Shareholders under Article 9.1 is served on or prior to
the fifth anniversary of the Completion Date;
(ii) the consideration to be received by the Ordinary
Shareholders to whom the Drag Offer is made on
completion of the Drag Offer is cash and the amount of
such cash to be received by the Investors gives the
Investors an aggregate return of an amount not less
than the Drag Along Target Investor Threshold; and
17
(iii) where the purchaser or members of the purchasing group
are connected with ▇▇ ▇'▇▇▇▇▇▇▇▇▇ or ▇▇ ▇▇▇▇▇▇▇▇, the
Company and the purchaser or members of the purchasing
group have entered into a binding commitment with the
Investors and Warrantholders pursuant to Clauses 14.3
and 14.8 of the Shareholders Agreement and either ▇▇
▇'▇▇▇▇▇▇▇▇▇ or ▇▇ ▇▇▇▇▇▇▇▇ (as the case may be) (or
both of them if they are each connected with the
purchaser or members of the purchasing group) has
represented in writing to the Investors that he or they
are not actually aware that any higher offer has been
made or will be made to them for the Company (or
substantially all the business and assets of the
Company) within the immediately ensuing period of two
months from the date of such representation
in which case the Drag Offer shall be made to all (but not some)
of the Investors and the Warrantholders but not to any of the
other Ordinary Shareholders.
9.3 A member of a purchasing group for the purposes of Article 9.1
shall mean a person or such person and any other person:-
9.3.1 who in relation to him is a connected person, as defined in
section 10 of the Taxes Consolidation Act, 1997; or
9.3.2 with whom he is acting in concert, as defined in the Irish
Takeover Panel Act 1997 (and ▇▇▇▇▇▇▇'s role or the role of any of
its associates as investment adviser shall not be deemed to make
its clients act in concert).
9.4 If any Remaining Shareholder ("Defaulting Shareholders") shall
fail to transfer any shares as required by Article 9.1, the
directors may authorise any individual to execute on behalf of
and as attorney for the Defaulting Shareholders any necessary
instruments of transfer against receipt by the Company of the
purchase proceeds for such shares and the directors shall
authorise the registration of the relevant member of the
purchaser's group as the holder of the shares (subject only to
the payment of stamp duty (if relevant)). The Company's receipt
of the purchase proceeds shall be a good discharge to the
relevant member of the purchaser's group, and the Company shall
thereafter hold the same on trust for the Defaulting Shareholders
(without any requirement to account for interest thereon). Each
Defaulting Shareholder shall surrender his or its share
certificate or, if lost, an indemnity for such lost certificate,
to the Company and forthwith on such surrender the Company shall
pay to him or it the purchase proceeds for such shares. After the
name of the relevant member of the purchaser's group has been
entered into the register of members in purported exercise of
these powers, the validity of the proceedings shall not be
questioned by any person.
9.5 While Article 9 applies to a Remaining Shareholder's shares,
those shares may not be transferred otherwise than under Article
9.
9.6 For the avoidance of doubt the pre-emption rights contained in
Article 8 shall not apply to any transfer or proposed transfer to
which this Article 9 relates.
10 Compulsory transfer
10.1 Article 10 applies to an Ordinary Shareholder (other than ▇▇
▇▇▇▇▇▇▇▇ and ▇▇ ▇'▇▇▇▇▇▇▇▇▇ or their Connected Transferees) who
becomes an Excluded
18
Shareholder (whether or not such person is an Ordinary
Shareholder at the time he becomes an Excluded Shareholder or
becomes an Ordinary Shareholder at any time after becoming an
Excluded Shareholder).
10.2 The Board following the binding recommendation of the
Remuneration Committee may at any time and from time to time
serve notice requiring such Ordinary Shareholder (or his personal
representatives in the case of his death) (a "Compulsory Seller")
to offer some or all of his Ordinary Shares ("Compulsory Seller's
Shares"), in the following order of priority (unless the
Remuneration Committee resolves that the order of priority of
such persons shall be otherwise) to:-
10.2.1 a person or persons intended to take the employee's place;
10.2.2 any of the existing employees of the Company or any of its 51%
subsidiaries;
10.2.3 participants or potential participants in, or trustees of an
employees' share scheme of the Company and its 51% subsidiaries;
and/or
10.2.4 any other person or persons approved by the Nominated Alchemy
Director and ▇▇ ▇'▇▇▇▇▇▇▇▇▇, except that the Compulsory Seller's
Shares shall not be offered to Investors except pro rata in
accordance with their respective shareholdings (together the
"Offerees').
10.3 The Board's notice may reserve the Nominated Alchemy Director and
▇▇ ▇'▇▇▇▇▇▇▇▇▇ the right to finalise the identity of the Offerees
once the price for the Compulsory Seller's Shares has been agreed
or certified.
10.4 The Compulsory Seller shall then offer his Compulsory Seller's
Shares to the Offerees free from all liens, charges and
encumbrances and together with all rights attaching to them on
the following terms:-
10.4.1 the price for the Compulsory Seller's Shares shall be the price
agreed between the Compulsory Seller and the Remuneration
Committee or, if they do not agree a price within 14 days of the
Board's notice, the price certified by independent accountants of
repute or a corporate finance house appointed by agreement
between the Board and the Compulsory Seller (or in the absence of
agreement between them, by the President of the Institute of
Certified Accountants), acting as experts and not as arbitrators,
to be:-
10.4.1.1 the market value which is in the opinion of the
auditors/accountants likely to result in a sale of the
Compulsory Seller's Shares immediately after the
cessation of employment; or
10.4.1.2 if the employment ceases less than one year after the
date of grant of any options to subscribe for the Sale
Shares, the issue price of the Compulsory Seller's
Shares if more
10.4.2 within seven days after the price has been agreed or certified:-
19
10.4.2.1 the Company shall notify the Compulsory Seller of the
names and addresses of the Offerees and the number of
Compulsory Seller's Shares to be offered to each;
10.4.2.2 the Company shall notify each Offeree of the number of
Sale Shares on offer to him; and
10.4.2.3 the Company's notices shall specify the price per share
and state a date, between seven and 14 days later, on
which the sale and purchase of the Sale Shares is to be
completed (the "Transfer Completion Date").
10.5 By the Transfer Completion Date the Compulsory Seller shall
deliver stock transfer forms for the Sale Shares, with the
relevant share certificates, to the Company. On the Transfer
Completion Date the Company shall pay the Compulsory Seller, on
behalf of each of the Offerees, the agreed or certified price for
the Sale Shares to the extent the Offerees have put the Company
in the requisite funds. The Company's receipt for the price shall
be a good discharge to the Offerees. The Company shall hold the
price in trust for the Compulsory Seller without any obligation
to pay interest.
10.6 To the extent that Offerees have not, by the Transfer Completion
Date, put the Company in funds to pay the agreed or certified
price, the Compulsory Seller shall be entitled to the return of
the stock transfer forms and share certificates for the relevant
Compulsory Seller's Shares and the Compulsory Seller shall have
no further rights or obligations under Article 10 in respect of
those Compulsory Seller's Shares.
10.7 If a Compulsory Seller fails to deliver stock transfer forms for
Compulsory Seller's Shares to the Company by the Transfer
Completion Date, the directors may (and shall, if requested by
the Nominated Alchemy Director or ▇▇ ▇'▇▇▇▇▇▇▇▇▇) authorise any
director to transfer the Compulsory Seller's Shares on the
Compulsory Seller's behalf to each Offeree to the extent the
Offeree has, by the Transfer Completion Date, put the Company in
funds to pay the agreed or certified price for the Sale Shares
offered to him. The directors shall then authorise registration
of the transfer once appropriate stamp duty has been paid. The
defaulting Compulsory Seller shall surrender his share
certificate for the Compulsory Seller's Shares to the Company. On
surrender, he shall be entitled to the agreed or certified price
for the Compulsory Seller's Shares.
10.8 While Ordinary Shares are liable to be Compulsory Seller's Shares
by virtue of Article 10.2, they may not be transferred without
the prior approval of the Remuneration Committee.
11 General provisions
11.1 Shareholders' meetings and resolutions
11.1.1 Regulation 50 of Part I of Table A is modified by the insertion
of the words "or the Nominated Alchemy Director acting alone"
after the second word of that regulation and the insertion of the
words "for a date not later than twenty eight days after receipt
of the requisition" after the word "requisition" on the third
line of that regulation.
20
11.1.2 Regulation 54 of Part I of Table A is modified by the deletion of
the second sentence and the substitution for it of the words "A
person or persons (being a member or a proxy for a member or a
duly authorised representative of a corporation) holding or
representing at least 50% in nominal value of the Ordinary Shares
in issue shall be a quorum".
11.1.3 A corporation which is a member of the Company may, by resolution
of its directors or other governing body, authorise such person
as it thinks fit to act as its representative at any meeting of
the Company or at any meeting of any class of members of the
Company. The person so authorised is entitled to exercise the
same powers on behalf of the corporation which he represents as
that corporation could exercise if it were an individual member.
11.1.4 A poll may be demanded by the chairman or by any member present
in person or by proxy and entitled to vote and regulation 59 of
Part I of Table A is modified accordingly.
11.1.5 Where an ordinary resolution of the Company is expressed to be
required for any purpose, a special or extraordinary resolution
is also effective for that purpose, and where an extraordinary
resolution is expressed to be required for any purpose, a special
resolution is also effective for that purpose.
11.1.6 Regulation 66 of Part I of Table A is modified by the inclusion
after the word "shall" of the phrase "unless the directors
otherwise determine".
11.1.7 Regulation 68 of Part I of Table A is modified by the addition at
the end of the following sentence: "Deposit of an instrument of
proxy shall not preclude a member from attending and voting at
the meeting or at any adjournment of it."
11.1.8 Regulation 70 of Part I of Table A is modified by the deletion of
the words "deposited at" and by the substitution for them of the
words "left at or sent by post or by facsimile transmission to",
by the substitution in line 6 of the words, "one hour" in place
of "48 hours" and by the substitution in line 8 of the words "one
hour" in place of "48 hours".
11.2 Number of directors
Unless otherwise determined by ordinary resolution, the number of
directors (other than alternate directors) is not subject to any
maximum and the minimum number is two.
11.3 Alternate directors
11.3.1 Any director (other than an alternate Director) may at any time
appoint another director, or any other person willing to act (who
need not be approved by resolution of the directors), to be an
alternate director of the Company and may at any time remove any
alternate director appointed by him from office.
11.3.2 An alternate director shall be entitled to receive notices of all
meetings of the directors and to attend and vote as a director at
any such meetings at which the director appointing him is not
personally present, and generally to perform all the functions of
his appointor as a director.
21
11.4 A director acting as an alternate for one or more other
directors:-
11.4.1 shall be counted only once for the purpose of determining the
presence of a quorum;
11.4.2 shall have, in addition to his own vote, one vote for each
director for whom he acts as alternate.
11.5 An alternate director shall cease to be an alternate director if
his appointor ceases for any reason to be a director, provided
that if any director retires by rotation but is re-elected by the
meeting at which such retirement took effect, any appointment
made by him pursuant to this Article which was in force
immediately prior to his retirement shall continue to operate
after his re-election as if he had not retired.
11.6 The appointment of an alternate director shall automatically
determine on the happening of any event which, if he were a
director, would cause him to vacate such office or if he resigns
his office by notice to the Company.
11.7 All appointments and removals of alternate directors shall be
effected in writing signed by the director making or revoking
such appointment delivered to or left or received at the office
and shall take effect in accordance with the terms of the notice
on receipt of such notice at the office.
11.8 Appointment, retirement and removal of directors
11.8.1 The directors are not subject to retirement by rotation and any
reference in any regulation of Table A to retirement by rotation
is to be disregarded.
11.8.2 The Company may by ordinary resolution appoint a person who is
willing to act to be a director either to fill a vacancy or as an
additional director.
11.8.3 A person appointed by the directors to fill a vacancy or as an
additional director need not retire from office at the annual
general meeting next following his appointment and the last
sentence of regulation 100 of Part I of Table A is deleted.
11.8.4 The holders of a majority of the shares giving the right to vote
at general meetings may at any time and from time to time by
serving notice on the Company remove any director from office and
appoint any person to be a director. A removal or appointment
takes effect when the notice is received by the Company or on a
later date specified in the notice.
Article 11.4.4 does not apply to the removal or appointment of an
Investor Director or ▇▇ ▇'▇▇▇▇▇▇▇▇▇ or ▇▇ ▇▇▇▇▇▇▇▇ (or a director
nominated by either of them).
11.9 Disqualification and removal of directors
11.9.1 The office of a director shall be vacated if:-
22
11.9.1.1 he ceases to be a director by virtue of any provision
of the Act or he becomes prohibited by law from being a
director;
11.9.1.2 he becomes bankrupt or makes any arrangement or
composition with his creditors generally;
11.9.1.3 he resigns his office by notice in writing to the
Company;
11.9.1.4 he has for more than six consecutive months been absent
without permission of the directors from meetings of
directors held during that period and his alternate
director (if any) has not during such period attended
any such meetings instead of him, and the directors
resolve that his office be vacated; or
11.9.1.5 (other than in the case of the Investor Directors and
▇▇ ▇'▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇ (or a director nominated
by either of them)) he is removed from office by notice
addressed to him at his last-known address and signed
by all his co-directors.
11.9.2 A person voting against a resolution under section 182 of the Act
to remove an Investor Director, ▇▇ ▇'▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ (or a
director nominated by either of them) is deemed, in respect of
that resolution, to have five times the votes of a person voting
in favour of the resolution and regulation 63 of Part I of Table
A is modified accordingly.
11.10 Proceedings of directors
11.10.1 Regulation 101 of Part I of Table A is modified by the deletion
of the last sentence and the substitution for it of the following
sentence: "Every director shall receive notice of a meeting,
whether or not he is absent from Ireland. A director may waive
the requirement that notice be given to him of a board meeting
either prospectively or retrospectively."
11.10.2 The quorum for the transaction of the business of the directors
shall be an Investor Director appointed by ▇▇▇▇▇▇▇ and either of
▇▇ ▇'▇▇▇▇▇▇▇▇▇ or ▇▇ ▇▇▇▇▇▇▇▇ (or a director appointed by either
of them) ("the Quorate Persons") unless any of such persons has
been given reasonable written notice of such meeting, waives that
right to attend or has appointed an alternate director who
attends or similarly waives his right to attend, in which case
the quorum shall be two directors. Regulation 102 of Part I of
Table A is amended accordingly.
11.10.3 If a meeting of the Board is not quorate as a result of any of
the Quorate Persons failing to attend, waiving their right to
attend, not appointing an alternate to attend or their alternate
not waiving their right to attend then a Meeting shall be
reconvened for a date being not less than seven business days
later which shall be quorate notwithstanding the failure of any
Quorate Person failing to attend, waive their rights to attend,
not appointing an alternate to attend or their alternate not
waiving their right to attend.
11.10.4 Any director or his alternate may validly participate in a
meeting of the directors or a committee of directors through the
medium of conference telephone or similar form of communication
equipment if all persons participating in the
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meeting are able to hear and speak to each other throughout such
meeting. A person participating in this way is deemed to be
present in person at the meeting and is counted in a quorum and
entitled to vote. Subject to the Acts, all business transacted in
this way by the directors or a committee of the directors is for
the purposes of the Articles deemed to be validly and effectively
transacted at a meeting of the directors or of a committee of the
directors although fewer than two directors or alternate
directors are physically present at the same place. The meeting
is deemed to take place where the largest group of those
participating is assembled or, if there is no such group, where
the chairman of the meeting then is.
11.10.5 Meetings of the Board shall take place no less frequently than
once per calendar month and at least five business days' notice
shall be given to each director provided that with the consent of
the Nominated Alchemy Director, board meetings may be held more
or less frequently and convened on more or less notice.
11.10.6 Without prejudice to the obligation of any director to disclose
his interest in accordance with section 194 of the Act, a
director may vote at a meeting of directors or of a committee of
directors on any resolution concerning a matter in which he has,
directly or indirectly, any interest or duty. The director shall
be counted in the quorum present when any such resolution is
under consideration and if he votes his vote shall be counted.
11.11 Borrowing powers of directors
The directors may exercise all the powers of the Company to
borrow and raise money and to mortgage and charge all or any part
of the undertaking, property and uncalled capital of the Company
and, subject to the provisions of the Act, to issue debentures
and other securities, whether outright or as collateral security
for any debt, liability or obligation of the Company or of any
third party.
11.12 Dividends
The directors may deduct from any dividend or other moneys
payable to a person in respect of a share any amounts due from
him to the Company on account of a call or otherwise in relation
to a share.
11.13 Capitalisation of profits
The directors may, with the authority of an ordinary resolution
of the Company, resolve that any shares allotted under regulation
130 or 130A of Part I of Table A to any member in respect of a
holding by him of any partly paid shares rank for dividends, so
long as those shares remain partly paid, only to the extent that
those partly paid shares rank for dividend and regulation 130 and
130A of Part I of Table A are modified accordingly.
11.14 Notices
11.14.1 A notice sent by post to an address within Ireland is deemed to
be given 24 hours after posting, if pre-paid as first class, and
48 hours after posting, if pre-paid as second class. A notice
sent by post to an address outside Ireland is deemed to be given
four days after posting, if pre-paid as airmail. Proof that an
envelope
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containing the notice was properly addressed, pre-paid and posted
is conclusive evidence that the notice was given. A notice not
sent by post but left at a member's registered address is deemed
to have been given on the day it was left.
11.14.2 Where the Articles require notice to be given by the holders of a
stated percentage of shares, notice may consist of several
documents in similar form each signed by or on behalf of one or
more shareholders.
11.15 Indemnity
11.15.1 Subject to the provisions of the Act, but without prejudice to an
indemnity to which he may otherwise be entitled, every director,
alternate director or secretary of the Company shall be
indemnified out of the assets of the Company against all costs,
charges, losses and liabilities incurred by him in the proper
execution of his duties or the proper exercise of his powers,
authorities and discretions including, without limitation, a
liability incurred defending proceedings (whether civil or
criminal) in which judgment is given in his favour or in which he
is acquitted or which are otherwise disposed of without a finding
or admission of material breach of duty on his part, or in
connection with any application in which relief is granted to him
by the court from liability for negligence, default, breach of
duty or breach of trust in relation to the affairs of the
Company.
11.15.2 The directors may exercise all the powers of the Company to
purchase and maintain insurance for the benefit of a person who
is a director, alternate director, secretary or auditor, or
former director, alternate director, secretary or auditor, of the
Company or of a company which is a subsidiary of the Company or
in which the Company has an interest (whether direct or
indirect), or who is or was trustee of a retirements benefit
scheme or another trust in which a director, alternate director
or secretary or former director, alternate director or secretary
is or has been interested, indemnifying him against liability for
negligence, default, breach of duty or breach of trust or any
other liability which may lawfully be insured against by the
Company.
12 Facility Agreements
12.1 Notwithstanding any other provision of these Articles, no payment
shall be made or agreed to be made by the Company in respect of
any shares or share capital (whether by way of dividend,
distribution, purchase or redemption, or by way of reduction or
return of share capital) if such payment is prohibited or
restricted by the terms of the Facility Agreements.
12.2 No dividend, distribution or other amount payable in respect of
shares in the capital of the Company (whether made pursuant to
the provisions of these Articles or otherwise) will constitute a
debt of the Company unless permitted to be paid and paid strictly
in accordance with the provisions of the Facility Agreements.
13 Excess Return
In the event of, and conditional upon the occurrence of a
Realisation by the fifth anniversary of the Completion Date, the
Investors shall, upon receipt by them of all the cash proceeds of
such Realisation (and pro rata to their respective holdings of
Ordinary Shares), make a payment or payments to a new bank
25
account set up by the Company of such amount as shall equal 15%
of the proceeds of the Excess Return. The Company shall as soon
as practicable following receipt of such amount(s) into such new
bank account make a payment (in one or more tranches) to each
Ordinary Shareholder who was an Ordinary Shareholder immediately
prior to such Realisation (other than to an Investor or holder of
Warrants) of an amount which bears the same proportion of the
monies in such account as the number of Ordinary Shares held by
such Ordinary Shareholders immediately prior to such Realisation
bears to the number of Ordinary Shares held by all Ordinary
Shareholders (other than those held by the Investors or as a
result of the conversion of any of the Warrants) immediately
prior to such Realisation.
14 Certain further provisions
14.1 A resolution in writing executed by or on behalf of each member
who would have been entitled to vote on it if it had been
proposed at a general meeting at which he was present shall be as
effective as it had been passed at a general meeting properly
convened and held. Such a resolution shall be by means of an
instrument or contained in an electronic communication sent to
such address (if any) for the time being notified by or on behalf
of the Company for that purpose and may consist of several
instruments or several electronic communications, each executed
in such manner as the directors may approve by or on behalf of
one or more of the members, or a combination of both and
Regulation 109 of Part I of Table A, is modified accordingly.
14.2 The instrument of transfer of a share may be in any usual form or
in any other form which the directors may approve and shall be
executed by or on behalf of the transferor only and Regulation 22
of Part I of Table A, is modified accordingly.
15 Tag Along Rights
15.1.1 In the event that (i) ▇▇ ▇▇▇▇▇▇▇▇ (or LLT) and/or (ii) ▇▇
▇'▇▇▇▇▇▇▇▇▇ propose to transfer any of their Ordinary Shares
(other than pursuant to Articles 7 or 9 or pursuant to Clauses
4.14, 4.15, 10.4 or 10.5 of the Shareholders Agreement) prior to
the registration of the transfer of such Ordinary Shares, he or
they shall procure that the proposed transferee has made an offer
to buy a percentage of the Ordinary Shares held by each of the
other Ordinary Shareholders and of the Warrants held by each
Warrantholder equivalent to the Ordinary Shares (expressed as a
percentage of his total holdings of Ordinary Shares) which he or
they propose to transfer on terms that the proposed transferee's
offer shall be as follows:-
15.1.2 the offer shall be open for acceptance for at least 21 days; and
15.1.3 the consideration for each Ordinary Share and Warrant Share (as
such term is defined in the Mezzanine Warrant Instrument) shall
be the consideration (whether in cash, securities or otherwise or
in any combination) equivalent to that which is proposed to be
paid for each Ordinary Share whose proposed transfer has led to
the offer.
16 Deferred Shares
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16.1 The holders of Deferred Shares shall not be entitled to receive
notice of general meetings of the Company or vote thereat.
16.2 The holders of Deferred Shares shall not be entitled to receive
dividends or to participate in any distribution of profits of the
Company.
16.3 The Deferred Shares may not be redeemed at a price per share in
excess of the US$ equivalent of (euro)0.01 at the time of a
redemption
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