Exhibit 1.1
COMPANIES ACTS, 1963 TO 2001
_______________________
COMPANY LIMITED BY SHARES
_______________________
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
TRINTECH GROUP PUBLIC LIMITED COMPANY
(as amended by Special Resolutions
up to 11th July, 2002)
__________________________________________________
Incorporated 29th January, 1987
__________________________________________________
A & L Goodbody,
Solicitors
COMPANIES ACTS, 1963 TO 2001
----------------------------
COMPANY LIMITED BY SHARES
-------------------------
MEMORANDUM OF ASSOCIATION
OF
TRINTECH GROUP PUBLIC LIMITED COMPANY
(as amended by Special Resolutions
up to 11th July, 2002)
-------------------------------
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:-
3.1. 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.
3.2. To exercise and enforce all rights and powers conferred to or
incident upon the ownership of any shares, stock obligations or
other securities 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.
3.3. 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.
3.4. 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.
3.5. 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.
3.6. 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.
3.7. 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
calculated directly or indirectly to benefit the company.
3.8. 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.
3.9. To lend money to such persons or companies either with or without
security and upon such terms as may seem expedient.
3.10. 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.
3.11. 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.
3.12. To adopt such means of making known the company and its products
and services as may seem expedient.
3.13. 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.
3.14. 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.
3.15. To provide services of any kind including the carrying on of
advisory, consultancy, brokerage and agency business of any kind.
3.16. 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.
3.17. To amalgamate with any other company.
3.18. 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.
3.19. 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.
3.20. 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 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.
3.21. 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.
3.22. 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.
3.23. 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.
3.24. To undertake and execute any trusts the undertaking whereof may
seem desirable, whether gratuitously or otherwise.
3.25. To procure the company to be registered or recognised in any
country or place.
3.26. 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.
3.27. 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.
3.28. To distribute any of the property of the company in specie among
the members.
3.29. 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.
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:
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Names, Addresses and Number of Shares taken
Descriptions of Subscribers by each Subscriber
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, One
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇.
Secretary
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, One
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇.
Secretary
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Dated the 3rd day of November, 1986
Witness to the above signatures:-
▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ House,
Wellington Quay,
Dublin 2.
Companies Acts, 1963 to 2001
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 Resolutions up to 11th July, 2002)
A & L Goodbody,
Solicitors
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 2. Share Capital 18
Rights
3. Rights of Shares on issue 19
4. Redeemable Shares 19
5. Variation of rights 19
6. Trusts not recognised 19
7. Disclosure of interests 20
8. Allotment of Shares 21
9. Payment of commission 22
10. Payment by installments 23
Part III - Share Certificates 11. Issue of certificates 23
12. Balance and exchange certificates 23
13. Replacement of certificates 24
Part IV - Lien on Shares 14. Extent of lien 24
15. Power of sale 24
16. Power to effect transfer 24
17. Proceeds of sale 25
Part V - Calls on Shares 18. Making of calls 25
and Forfeiture
19. Time of call 25
20. Liability of joint Holders 25
21. Interest on calls 26
22. ▇▇▇▇▇▇▇ treated as calls 26
23. Power to differentiate 26
24. Interest on moneys advanced 26
25. Notice requiring payment 26
26. Power of disposal 27
27. Effect of forfeiture 27
28. Statutory declaration 28
29. Non-Payment of sums due on 28
Share issues
Part VI - Conversion of 30. Conversion of Shares Into 28
Shares into Stock Stock
31. Transfer of stock 28
32. Rights of stockholders 29
Part VII - Transfer of Shares 33. Form of instrument of transfer 29
34. Execution of instrument of 29
transfer
35. Refusal to register transfers 29
36. Procedure on refusal 30
37. Closing of transfer books 30
38. Absence of registration fees 30
39. Retention of transfer 30
instruments
40. Renunciation of allotment 31
Part VIII - Transmission of 41. Death of member 31
Shares
42. Transmission on death or 31
bankruptcy
43. Rights before registration 31
Part IX - Alteration of Share 44. Increase of capital 32
Capital
45. Consolidation, sub-division and 32
cancellation of capital
46. Fractions on consolidation 33
47. Reduction of capital 33
48. Purchase of own Shares 33
Part X - General Meetings 49. Annual general meetings 34
50. Extraordinary general meetings 34
51. Convening general meetings 34
52. Notice of general meetings 34
Part XI - Proceedings At 53. Quorum for general meetings 36
General Meetings
54. Special business 36
55. Chairman of general meetings 37
56. Directors' and Auditors' right to 37
attend general meetings
57. Adjournment of general meetings 37
58. Determination of resolutions 37
59. Amendments to resolutions 38
60. Entitlement to demand poll 38
61. Taking of a poll 38
62. Votes of members 39
63. Chairman's casting vote 39
64. Voting by joint Holders 39
65. Voting by incapacitated Holders 39
66. Default in payment of calls 40
67. Restriction of voting and other 40
rights
68. Time for objection to voting 42
69. Appointment of proxy 42
70. Bodies corporate acting by 42
representatives at meetings
71. Deposit of proxy instruments 43
72. Effect of proxy instruments 43
73. Effect of revocation of proxy or of 44
authorisation
Part XII - Directors 74. Number of Directors 44
75. Share qualification 45
76. Ordinary remuneration of Directors 45
77. Special remuneration of Directors 45
78. Expenses of Directors 45
45
79. Alternate Directors 45
Part XIII - Powers of Directors 80. Directors' powers 46
81. Power to delegate 47
82. Appointment of attorneys 47
83. Local management 48
84. Borrowing powers 48
85. Execution of negotiable instruments 48
86. Provision for employees 48
Part XIV - Appointment and Retirement of 87. Retirement by rotation 49
Directors
88. Deemed reappointment 49
89. Eligibility for appointment 50
90. Appointment of additional Directors 50
Part XV - Disqualification and Removal 91. Disqualification of Directors 50
of Directors
92. Removal of Directors 51
Part XVI - Directors' Offices and 93. Executive offices 52
Interests
94. Disclosure of interests by Directors 53
95. Directors' interests 53
96. Restriction on Directors' voting 54
97. Entitlement to grant pensions 57
Part XVII - Proceedings of 98. Convening and regulation of 57
Directors Directors' meetings
99. Quorum for Directors' meetings 57
100. Voting at Directors' meetings 58
101. Telecommunication meetings 59
102. Chairman of the board of Directors 59
103. Validity of acts of Directors 59
104. Directors' resolutions or other documents in 59
writing
Part XVIII - The Secretary 105. Appointment of Secretary 60
Part XIX - The Seal 106. Use of Seal 60
107. Seal for use abroad 60
108. Signature of sealed instruments 60
Part XX - Dividends and Reserves 109. Declaration of dividends 61
110. Scrip dividends 62
111. Interim and fixed dividends 64
112. Payment of dividends 64
113. Deductions from dividends 64
114. Dividends in specie 65
115. Payment of dividends by post 65
116. Dividends not to bear interest 65
117. Payment to Holders on a particular date 65
118. Unclaimed dividends 66
119. Reserves 66
Part XXI - Accounts 120. Accounts 66
Part XXII - 121. Capitalisation of profits and reserves 68
Capitalisation of
Profits or Reserves
122. Capitalisation and use of non-distributable 68
profits and reserves
123. Implementation of capitalisation issues 68
Part XXIII - Notices 124. Notices in writing 69
125. Service of notices 69
126. Notices to members 70
127. Service on joint Holders 71
128. Service on transfer or transmission of Shares 71
129. Signature to notices 71
130. Deemed receipt of notices 71
Part XXIV - Winding up 131. Distribution on winding up 72
132. Distribution in specie 72
Part XXV - Miscellaneous 133. Minutes of meetings 72
134. Inspection 73
135. Secrecy 73
136. Destruction of records 73
137. Untraced Shareholders 74
138. Indemnity 76
Companies Acts, 1963 to 2001
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 11th July, 2002)
Part I - Preliminary
1. Interpretation
1.1. The regulations contained in Table A in the First Schedule to the
Companies Act, 1963 shall not apply to the Company.
1.2. 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;
"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;
"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;
16
"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;
"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 other exchange in
Exchange" 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 means a warrant or certificate or similar document
subscribe" 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.
17
1.3. 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.
1.4. 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.
1.5. The headings and captions included in these Articles are inserted for
convenience of reference only and shall not be considered a part of or
affect the construction or interpretation of these Articles.
1.6. 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.
1.7. 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.
1.8. References in these Articles to pounds or ▇▇▇▇▇ or IR(pound)or IRp
shall mean the currency, for the time being, of the State.
1.9. 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:
2.1. 100,000,000 Ordinary Shares of US$0.0027 each; and
2.2. 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.
18
3. Rights of Shares on issue
3.1. 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 time determine.
3.2. 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
5.1. 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.
5.2. 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
19
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
7.1. 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)
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.
7.2 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
20
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.
7.3. 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.
7.4. 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.
7.5. The provisions of Articles 124 to 130 inclusive shall apply to
the service of notices required by this Article to be served.
7.6. 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.
7.7. 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
8.1 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
21
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.
8.2. 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 committee thereof appointed by the Directors for the purpose of
such approval.
8.3. 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 2employees) 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.
8.4. 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 11th July, 2007, 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
22
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.
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
12.1. 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.
12.2. 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
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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.
13. Replacement of certificates
13.1. 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.
13.2. 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 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
24
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.
20. Liability of joint Holders
The joint Holders of a Share shall be jointly and severally liable to
pay all calls in respect thereof.
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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. ▇▇▇▇▇▇▇ 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 ascertaining the amount of the
dividend payable on the Shares in respect of which such advance has
been made.
25. Notice requiring payment
25.1. 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.
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25.2. 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.
25.3. 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.
25.4. 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
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
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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.
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.
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32. Rights of stockholders
32.1. 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.
32.2. Such of these Articles as are applicable to paid up Shares
shall apply to stock, and the words "Share" 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
35.1. 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.
35.2. The Directors may decline to recognise any instrument of
transfer unless:-
29
35.2.1. 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;
35.2.2. the instrument of transfer is in respect of one
class of Share only;
35.2.3. the instrument of transfer is in favour of not
more than four transferees; and
35.2.4. it is lodged at the Office or at such other
place as the Directors may appoint.
35.3. 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.
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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.
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 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
31
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
44.1. 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.
44.2. 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.
44.3. 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:-
45.1. consolidate and divide all or any of its share capital into
Shares of larger amount;
45.2. 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
32
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
45.3. 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 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
33
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.
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
52.1. 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.
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52.2. 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 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.
52.3. 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.
52.4. 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.
52.5. 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
35
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 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 - Proceedingd at General Meetings
53. Quorum for general meetings
53.1. 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.
53.2. 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 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.
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55. Chairman of general meetings
55.1. 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.
55.2. 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 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
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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:-
60.1. by the chairman of the meeting;
60.2. by at least three Members present (in person or by proxy)
having the right to attend and vote at the meeting;
60.3. 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
60.4. 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
61.1. 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.
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61.2. 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.
61.3. 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 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
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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.
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
67.1. 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:
67.1.1. 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
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67.1.2. 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.
67.2. 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;
67.3. 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.
67.4. 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.
67.5. 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.
67.6. 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.
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67.7. 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.
67.8. For the purpose of these Articles the expression "Specified
Event" in relation to any Share shall mean either of the
following events:-
67.8.1. 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
67.8.2. 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. 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
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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:-
71.1. 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;
71.2. 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 subsequent meeting
to which it relates; and
71.3. 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,
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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
73.1. 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.
73.2. The Directors may send, at the expense of the Company, by post
or otherwise, to the Members instruments of proxy (with or
without stamped 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
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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 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
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79.1. 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.
79.2. 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 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).
79.3. 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.
79.4. 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.
79.5. 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.
79.6. 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
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Subject to the provisions of the Acts, the Memorandum of Association of
the Company and these Articles and to any 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 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
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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 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.
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Part XIV - Appointment and Retirement of Directors
87. Retirement by Rotation
87.1. 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.
87.2. 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.
87.3. 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.
87.4. 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 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
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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 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
90.1. 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.
90.2. 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:-
50
91.1. he ceases to be a Director by virtue of any provision of the Acts
or he becomes prohibited by law from being a Director;
91.2. he becomes bankrupt or makes any arrangement or composition with
his creditors generally;
91.3. 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;
91.4. (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;
91.5. he is convicted of an indictable offence, unless the Directors
determine otherwise;
91.6. 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;
91.7. 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.
91.8. in the case of a Director appointed to, or otherwise holding,
such office for a fixed term;
91.8.1. Upon the expiry of such terms; or
91.8.2. 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");
91.8.3. 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
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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 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
93.1. 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.
93.2. 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.
93.3. 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.
93.4. 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.
93.5. 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
52
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
95.1. 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:-
95.1.1. 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;
95.2. 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
95.2.1. 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.
95.3. 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
53
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.
95.4. 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.
95.5. For the purposes of this Article:-
95.5.1. 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
95.5.2. 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
expect him to have knowledge shall not be
treated as an interest of his.
96. Restriction on Directors' voting
96.1. 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.
96.2. 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:-
54
96.2.1. 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;
96.2.2. 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;
96.2.3. the underwriting by him of any Shares,
debentures or other securities of the Company or
any of its subsidiaries or Associated Companies;
96.2.4. 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;
96.2.5. 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);
96.2.6. 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
55
generally awarded to the employees to whom such
arrangement or scheme relates;
96.2.7. 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 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
96.2.8. 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.
96.3. 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.
96.4. 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.
96.5. 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.
56
96.6. 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
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
98.1. 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.
98.2. 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
57
99.1. 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.
99.2. 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.
99.3. 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.
99.4. 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
100.1. 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.
100.2. 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
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.
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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
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
59
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 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
108.1. 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.
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108.2. 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 issued under
the Seal of the Company pursuant to these Articles.
Part XX - Dividends and Reserves
109. Declaration of dividends
109.1. 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.
109.2. 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.
109.3. 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.
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110. Scrip dividends
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):
110.1. 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.
110.2. 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.
110.3. 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.
110.4. The Directors shall not proceed with any election unless the
Company has sufficient unissued Shares authorised for issue and
sufficient reserves or funds that may be capitalised to give
effect to it after the basis of allotment is determined.
110.5. 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.
110.6. 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
62
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.
110.7. 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.
110.8.
(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 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
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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 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
112.1. 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.
112.2. 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.
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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 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
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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, 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
120.1. The Directors shall cause to be kept proper books of account,
whether in the form of documents or otherwise, that:
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120.1.1. correctly record and explain the transactions of the Company,
120.1.2. will at any time enable the financial position of the Company
to be determined with reasonable accuracy,
120.1.3. 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
120.1.4. will enable the accounts of the Company to be readily and
properly audited.
120.2. 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.
120.3. 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.
120.4. 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.
120.5. 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.
120.6. 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.
120.7. Auditors shall be appointed and removed and their duties regulated in
accordance with the Acts.
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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 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
68
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
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
125.1. 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:
125.1.1. by handing same to him or his authorised agent;
125.1.2. by leaving the same at his registered address; or
125.1.3. by sending the same by the post in a pre-paid cover
addressed to him at his registered address.
125.2. 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).
125.3. 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.
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125.4. 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.
125.5. Without prejudice to the provisions of Article 125.1(a) and (b),
if at any time by reason of the 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.
125.6. 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.
125.7. 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.
126. Notices to members
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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
128.1. 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.
128.2. 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.
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.
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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, 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:-
133.1. of all appointments of officers and committees made by the
Directors and of their salary or remuneration;
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133.2. 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
133.3. 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 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
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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 the books or
records of the Company. Provided always that:
136.1. 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;
136.2. 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
136.3. 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:-
137.1. 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;
137.2. 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;
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137.3. 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;
137.4. 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 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
137.5. 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 such as the Directors determine, based upon
advice from such bankers, brokers or
75
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 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.
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Names, Addresses and Descriptions of Subscribers
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, One
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▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇.
Secretary
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, One
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
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Secretary
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Dated this 3rd day of November, 1986
Witness to the above signatures:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ House,
Wellington Quay,
Dublin 2.
77