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The Proposal
 

Company No 3867789

THE COMPANIES ACTS 1985 AND 1989

PRIVATE COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION

OF

POPTEL LIMITED

Incorporated on 28th October 1999

ADOPTED BY SPECIAL RESOLUTION

Passed on 12 July 2001

1. Definitions
2. Table A
3. Share Capital
4. Issue of Shares
5. Rights attaching to Shares
6. Permitted Transfer
7. Transfers of Shares
8. Conversion of Shares on Transfer
9. Transfers Changing Control
10. Meetings
11. Notices
12. Directors Borrowing Powers
13. Directors
14. A Directors, B Directors and 'E' Directors
15. Board Meetings
16. Indemnity

 

1. Definitions

1.1 In the interpretation of these Articles, unless the context otherwise requires, the following definitions shall apply :

"the Act"
means the Companies Act 1985, as amended by the Companies Act 1989, and any statutory modification or re-enactment from time to time in force;

"these Articles"
means these Articles of Association as amended from time to time;

"A Director"
means a director appointed pursuant to Article 14.1;

"'A' Ordinary Shareholder"
means a holder of an 'A' Ordinary Share;

"B Director"
means a director appointed pursuant to Article 14.2;

"'E' Director"
means a director appointed pursuant to Article 14.3;

"A Share"
means an A Ordinary Share of £0.01 of the Company;

"A Shareholder"
means a holder of an A Share;

"'A' Ordinary Share"
means an 'A' Ordinary Share of £0.0001 of the Company

"B Share"
means a B Ordinary Share of £0.01 of the Company;

"B Shareholder"
means a holder of a B Share;

"C Share"
means a C Ordinary Share of £0.01 of the Company;

"C Shareholder"
means a holder of a C Share;

"D Share"
means a D Ordinary Share of £0.01 of the Company;

"D Shareholder"
means a holder of a D Share;

"E Ordinary Share"
means a E Ordinary Share of £0.0001 of the Company;

"E Shareholder"
means a holder of a E Share;

"Business Days"
means Monday to Friday inclusive but excluding statutory holidays or days on which banks generally are not open for business;

"Business Transfer Agreement"
means the Agreement dated 2 December 1999 between Soft Solution Limited (1) and the Company (2) for the transfer of the business of Soft Solution Limited to the Company;

"Connected Person"
means as defined by Section 839 of the Income and Corporation Taxes Act 1988;

"Group"
means in relation to any company, any holding company of that company and any subsidiaries of that company or its holding company and any employee benefit trust established by such a company;

"Investor Directors"
means the 'B' Directors and the 'E' Director

"Shares"
means A Shares, 'A' Ordinary Shares, B Shares, C Shares, D Shares and 'E' Ordinary Shares

"Subscription Agreement"
means the Shareholders and Subscription Agreement dated 18th November 1999 relating to (inter alia) the subscription for shares in the Company between Soft Solution Limited (1) the Company (2) The Poptel Worldwide Limited Partnership (3) SUM International Holdings Limited (4) and The Trustee of the SSL Employee Benefit Trust (5) (as may be amended from time to time);

"Supplemental Subscription Agreement"
means the Shareholders and Subscription Agreement dated 6th April 2001 relating to (inter alia) the subscription for shares in the Company between Soft Solution Limited (1) the Company (2) the Poptel Worldwide Limited Partnership (3) Sum International Holdings Limited (4) and The Trustee of the SSL Employee Benefit Trust (5) and Baxi Partnership Limited (as may be amended from time to time);

"Table A"
means Table A scheduled to the Companies (Tables A to F) Regulations 1985 as amended prior to the date of adoption of these Articles; and

"Unethical Manner"
means in a manner which includes the manufacture or sale of arms.

1.2 Any term or expression defined in the Act shall, unless the context otherwise requires, have the same meaning in these Articles.

1.3 In the interpretation of these Articles :

(a) the singular shall include the plural and vice versa

(b) the expression shareholder or member includes his personal representatives; and

(c) references to the masculine gender shall include the feminine gender

2. Table A

The regulations contained in Table A shall apply to the Company save insofar as they are varied or excluded by or are inconsistent with these Articles Regulations 26, 50, 62, 73 to 77 inclusive and 80, and the final sentence of regulation 112 shall not apply.

3. Share Capital

3.1 The authorised share capital of the Company at the date of adoption of these Articles is £10,000 divided into 989,534 Ordinary Shares of £0.01, 7500 A Shares, 2,300 A Ordinary Shares, 2,500 B Shares, 420 C Shares, 1 D Share and 2,200 "E" Ordinary Shares

3.2 Save as provided in these Articles, all shares in the capital of the Company shall rank pari passu in all respects.

4. Issue of Shares

4.1 The provisions of Section 89(1), Section 90(1) to (6) inclusive of the Act shall not apply to the Company.

4.2 Any Shares in the capital of the Company shall only be issued pursuant to an offer of an issue of A Shares, 'A' Ordinary Shares, B Shares and 'E' Ordinary Shares on identical terms to the A Shareholders, 'A' Ordinary Shareholders, B Shareholders and E Ordinary Shareholders respectively in proportion as nearly as circumstances admit (fractions being disregarded) to the numbers of the existing issued A Shares, 'A' Ordinary Shares, B Shares and 'E Ordinary Shares (as the case may be) of which they are the holders.

4.3 The offer shall be made by notice specifying the number and class of shares and the price at which they are offered and limiting the time (being not less than 28 days unless the member to whom the offer is to be made otherwise agrees) within which the offer, if not accepted, shall be deemed to have been declined.

4.4 Any A Shares , 'A' Ordinary Shares, B Shares, C Shares, D Shares or 'E' Ordinary Shares allotted to a member shall, before allotment, be designated as the same class of such Shares as the shares already held by him.

5. Rights attaching to Shares

5.1 All resolutions of the members shall be decided by a poll and no resolutions shall be decided on a show of hands.

5.2 On a poll the Shareholders shall have the following voting rights

Class Percentage of total Voting Rights in
the capital of the Company

The 'A' Ordinary Shareholder
11.330
The 'A' Shareholder 37.566
The 'B' Shareholder 12.522
The 'C' Shareholder 2.104
The 'D' Shareholder 25.590
The 'E' Ordinary Shareholder 10.888

Dividends

5.3 The Shareholders shall be entitled to receive a dividend in accordance with the following proportions of the total dividends payable inclusive of the dividend payable on each class of shares

Class Percentage of total Voting Rights in
the capital of the Company

'A' Ordinary Shares
11.330
'A' Shares 37.566
'B' Shares 12.522
'C' Shares 2.104
'D' Shares 25.590
'E' Ordinary Shares 10.888

Capital

5.4 On a return of assets on liquidation, reduction of capital or otherwise the Shareholders shall be entitled in respect of their shares to be paid out of the surplus assets of the Company remaining after payment of its liabilities a sum equal to such percentage of the assets available for distribution proportionate to the dividend distribution rights in Article 5.3.

6. Permitted Transfer

6.1 The directors shall not register any transfer of shares in the Company save as expressly permitted by these Articles.

6.2 Any shareholder which is a body corporate may transfer any Shares to any member of its Group if the transferee gives an undertaking to the Company that, immediately prior to its ceasing to be a member of that Group, the shares shall be transferred to another body corporate in that Group.

6.3 Any Share may be transferred at any time by a shareholder to any other person with the consent of all of the members of the Company.

7. Transfers of Shares

7.1 In this Article the auditors for the time being of the Company;"Auditors" means the auditors for the time being of the Company;

"fair price" means the fair price of any Shares as certified by the Auditors;

"offer price" means the offer price (if any) at which Shares are offered in a transfer notice;

"proposing transferor" means any shareholder desiring to sell or otherwise dispose of any Shares;

"transfer notice" means a notice in writing from a member specifying the Shares held by that member which he desires to sell or dispose of.

7.2 Any proposing transferor shall deliver a transfer notice to the Company at its registered office specifying the number of Shares, the offer price (if any) and the third party (if any) to whom it is proposed to transfer the Shares.

7.3 The transfer notice shall constitute the directors the agents of the proposing transferor for the sale of the Shares and the Directors shall, within seven days of the transfer notice being given to the Company, offer the Shares in writing pro rata (as nearly as may be) to the holders of the A Shares, 'A' Ordinary Shares, B Shares, C Shares, D Shares and 'E' Ordinary Shares in proportion to the voting rights attached to their respective holdings thereof. The offer shall state :

(a) The number of Shares offered:

(b) The offer price, if any;

(c) The third party specified in the transfer notice (if any); and

(d) That, if the offer is not accepted in writing within 60 days, it will be deemed to be declined.

Any member to whom the offer is given who desires an allocation of Shares in excess of his pro rata allocation should in his reply state how many excess Shares he desires to have. If all the members do not claim their pro rata allocations the unclaimed Shares shall be applied in satisfying claims for excess Shares in the proportion that those claims are made. If any Shares are not capable, without fractions, of being offered to members in proportion to their entitlement they shall (to the extent that fractions would arise) be offered to members in the proportions determined by lots to be drawn under the direction of the directors.

7.4 Each member who accepts the offer made under Article 7.3 may state in his reply that he accepts the offer price, if any. If any member accepting the offer states in his reply that he does not accept the offer price or makes no reference to the offer price or if no offer price was stated by the proposing transferor, the directors, upon all the members to whom the offer is made under Article 7.3 replying or upon the expiry (if earlier) of the period of 60 days referred to in Article 7.3, shall instruct the Auditors to certify the fair price of the Shares. The fees and expenses of the Auditors shall be paid as to one half by the proposing transferor and as to the balance by those members who have accepted the offer but not the offer price (if any) in proportion to the numbers of the Shares in respect of which they have accepted the offer.

7.5 The fair price shall be determined by the Auditors (acting as experts and not as arbitrators) on the basis of the fair value of the business of the Company, as a going concern at the date on which they are instructed to determine the fair price, as between a willing vendor and a willing purchaser and without any account being taken of whether the interest being sold is a minority or majority interest in the Company.

7.6 Any intending party to a transfer of the Shares may, within fourteen days of the issue of the auditors certificate, indicate in writing that he does not accept the fair price and that he does not wish to proceed either to dispose of the Shares or acquire the Shares (as the case may be).

7.7 The proposing transferor shall be bound to transfer to each purchaser the number of Shares being purchased upon payment by the purchaser of the offer price or the fair price (as the case may be), which payment shall be made within fourteen days of the acceptance of the offer price or determination of the fair price (as the case may be).

7.8 If in any case the proposing transferor, after having become bound to sell any Shares, fails to transfer any of them the directors may receive the purchase money which shall be paid into a separate bank account. The directors shall, within a reasonable period, nominate some person to execute an instrument or instruments of transfer of the relevant Shares in the name and on behalf of the proposing transferor and the directors shall cause the name of the relevant purchaser or purchasers to be entered in the register as the holder or holders of the relevant Shares and shall hold the purchase money in trust for the proposing transferor but without being liable for interest. The receipt of a director for the purchase money shall be a good discharge to the purchaser or purchasers and, after his or their names have been entered into the register, the validity of the proceedings shall not be questioned by any person.

7.9 If the directors do not find a member or members willing to purchase all the Shares the subject of a transfer notice, the proposing transferor shall, at any time within 90 days after that has been determined, be at liberty to sell and transfer the Shares, or those for which the Company shall not have found a purchaser or purchasers, to the third party named in the transfer notice for a cash price payable prior to transfer and being not less than the offer price (if any) or the fair price, if no offer price is specified in the transfer notice Provided that shares may not be transferred to any person who in the reasonable opinion of the holders of the majority of "A" Shares carries on business in an Unethical Manner.

8. Conversion of Shares on Transfer

Any 'A' Share or 'A' Ordinary Share transferred to a 'B' Shareholder shall be converted into 'B' Share and any 'B' Share or 'D' Share transferred to an 'A' Shareholder or 'A' Ordinary Shareholder shall be converted into an 'A' Share or 'A' Ordinary Share respectively unless following conversion all the issued shares would be of only one class. Any 'A', 'A' Ordinary, 'B' Share or 'D' Share transferred to an 'E' Ordinary Shareholder shall be converted into an 'E' Ordinary Share and any 'E' Ordinary Share transferred to an 'A', 'A' Ordinary or B Shareholder shall be converted into an 'A', 'A' Ordinary or 'B' Share respectively unless following conversion all the issued shares would be of only one class.

9. Transfers Changing Control

9.1 No transfer or allotment of any shares shall be made to any person if it would result in that person obtaining or increasing a controlling interest in the Company unless, before the transfer or allotment is registered, that person or his nominee has first made an offer (which must remain open for acceptance for at least twenty-eight days) to purchase all the other Shares, on the same terms as the proposed transfer or allotment to himself. The provisions of this Article shall not apply to the acquisition of the shares by a shareholder who is a shareholder at the date of adoption of these Articles.

9.2 For the purpose of this Article "a controlling interest" means shares conferring in the aggregate 30 per cent or more of the total voting rights capable of being exercised at general meetings of the Company (including shares held by all persons who in relation to each other are Connected Persons or persons acting on concert within the meaning of the City Code or Takeovers and Mergers).

10. Meetings

10.1 Regulation 37 of Table A shall be amended by the insertion of the words "or the B Directors acting alone", after the second word of that regulation.

10.2 If a meeting is adjourned under Regulation 41 of Table A because a quorum is not present, and at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the shareholders present shall form a quorum and Regulation 41 of Table A shall be modified accordingly.

10.3 A poll may be demanded by the Chairman or by any shareholder present in person or by proxy and having the right to vote at the meeting and Regulation 46(b) of Table A shall be modified accordingly.

10.4 Regulation 53 of Table A shall be modified by the addition at the end of the following sentence: "If such a resolution in writing is described as a special resolution or as an extraordinary resolution or as an elective resolution, it shall have effect accordingly".

10.5 Regulation 59 of Table A shall be modified by the addition at the end of the following sentence :"Deposit of an instrument of proxy shall not preclude a member from attending and voting at the meeting or at any adjournment thereof".

10.6 Regulation 62 of Table A shall be modified by the deletion in paragraph (a) of the words "deposited at" and by the substitution for them of the words "left at or sent by post or by facsimile transmission to" and by the insertion at the end of the regulation after the word "invalid" of the words "unless a majority of the Directors (a B Director being part of that majority) resolve otherwise".

10.7 The passing of any Special Resolution or Extraordinary Resolution shall require the prior consent in writing of the holders of the majority of the B Shares.

11. Notices

Any notice under these Articles sent to any member (or any other person entitled to receive notices under the Articles) by post to an address within the United Kingdom shall be deemed to have been given upon the expiry of twenty-four hours, if prepaid as first class, and upon the expiry of forty-eight hours, if prepaid as second class, after the same shall have been posted within the United Kingdom. Any such notice sent by post to an address outside the United Kingdom shall be deemed to have been given within seventy-two hours, if prepaid as airmail. In proving the giving of notice it shall be sufficient to prove that the envelope containing the same was properly addressed, prepaid and posted in the United Kingdom. Any notice not sent by post but left at a members registered address shall be deemed to have been given on the day it was so left.

12. Directors Borrowing Powers

Subject as provided in this Article 12, the board of Directors may exercise all the powers of the Company to borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present or future) and uncalled capital of the Company and, subject to the provisions of the Act, to issue debentures and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party.

13. Directors

13.1 Unless otherwise determined by special resolution the number of Directors (other than alternate directors) shall be not less than two nor more than seven.

13.2 Regulation 68 of Table A shall be modified by the addition at the end of the following sentence : "Any such notice may be left at or sent by post facsimile transmission or electronic mail to the office or such other place as may be designated for the purpose by the Directors".

13.3 A Director shall not retire by rotation and a Director appointed to fill a vacancy or as an addition to the board shall not retire from office at the Annual General Meeting next following his appointment. Regulations 78 and 79 of Table A shall be modified accordingly.

13.4 The office of Director shall be vacated if a Director in the reasonable opinion of all his co-Directors becomes incapable by reason of mental disorder of discharging his duties as Director.

13.5 Save as expressly provided herein Directors may only be appointed or removed in accordance with Article 14.

14. A Directors, B Directors and 'E' Directors

14.1 The holders of the majority of the 'A' Shares shall be entitled to appoint and remove up to four Directors ('A' Directors). Such appointment or removal shall be made by notice in writing served upon the Company at its registered office. Any 'A' Director from time to time may by notice in writing to the Company appoint, and remove, an alternate 'A' director without the need for any further approval by the Directors; regulation 65 of Table A shall be modified accordingly.

14.2 The holders of the majority of the 'B' Shares shall be entitled to appoint and remove two Directors ('B' Directors). Such appointment or removal shall be made by notice in writing served upon the Company at its registered office. Any 'B' Director from time to time may by notice in writing to the Company appoint, and remove, an alternate 'A' director without the need for any further approval by the Directors; regulation 65 of Table A shall be modified accordingly.

14.3 The holders of the majority of the 'E' Shares shall be entitled to appoint and remove one Director ('E' Directors). Such appointment or removal shall be made by notice in writing served upon the Company at its registered office. Any 'E' Director from time to time may by notice in writing to the Company appoint, and remove, an alternate 'E' director without the need for any further approval by the Directors; regulation 65 of Table A shall be modified accordingly.

14.4 Where any decision is to be made by the Company (including whether or not to bring or defend a claim), on or before the date being two years from the date of the relevant contract, in relation to the Subscription Agreement or any Shareholder-related Contract, such decision shall be within the exclusive power of the Investor Directors (to the exclusion of the other Directors) who shall have (without limitation) exclusive authority in relation to the conduct of any proceedings of whatever nature arising in connection with any such claim and no other Director shall have power to settle or compromise any such claim.

15. Board Meetings

15.1 Meetings of the board of Directors shall take place no less frequently than once per calendar month and at least seven clear working days notice of each meeting shall be given to each Director (whether or not he is absent from the United Kingdom) provided that if a majority in number of the Directors agree to less frequent meetings and/or to a shorter period of notice then board meetings may be called less frequently and/or such agreed shorter period of notice provided further that such majority so agreeing must include the B Directors. All board meetings shall take place in the United Kingdom save with such agreement as aforesaid. The quorum for board meetings shall be three Directors present throughout the Meeting of which at least one shall be an 'A' Director, a 'B' Director and an E Director and regulation 89 of Table A is modified accordingly.

15.2 Subject to the provisions of the Act provided that he has disclosed to the directors the nature and extent of any material interest of his a Director may vote as a Director in regard to any contract or arrangement in which he is interested or upon any matter arising thereout and if he shall so vote shall be counted. He may be reckoned in estimating a quorum when any such contract or arrangement is under consideration and regulation 94 of Table A shall be extended accordingly.

15.3 Without prejudice to Article 15.1, a meeting of the board of Directors or of a committee of the board may consist of a conference between Directors who are not all in one place, but of whom each is able (directly or by telephonic or other communication) to speak to each of the others, and to be heard by each of the others simultaneously, and the word "meeting" in these Articles shall be construed accordingly.

16. Indemnity

16.1 Subject to the provisions of the Act, but without prejudice to any indemnity to which he may otherwise be entitled, every director, alternate director, secretary or other officer or employee of the Company shall be indemnified out of the assets of the Company against all costs, charges, expenses, losses, damages and liabilities which he may sustain or incur in or about the execution of his duties or the exercise of his powers or otherwise in relation thereto including, without prejudice to the generality of the foregoing, any liability incurred defending any proceedings, whether 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 in which judgment is given in his favour or in which he is acquitted, or which are otherwise disposed of without any finding or admission of material breach of duty on his part or in connection with any application in which relief is granted to him by the court from liability for negligence, default, breach of duty or breach of trust in relation to the affairs of the Company.

16.2 The Directors may exercise all the powers of the Company to purchase and maintain for any Director, auditor or other officer (including former directors and other officers) or any other person insurance against any liability for negligence, default, breach of duty or breach of trust or any other liability which may lawfully be insured against.

Appendices