APPENDIX TO SPONSORING ORGANIZATION’s PROPOSAL

 

C Vs FOR TELNIC DIRECTORS AND SENIOR MANAGEMENT

CHRISTOPHER KEMBALL

 

CHAIRMAN, TELNIC LIMITED

 

Christopher Kemball, 53, is an experienced senior executive, with a background in Corporate Finance and Capital Markets. In recent years his capital markets experience has been focussed particularly on telecommunications and related sectors.

 

From 1992 to 1999 he worked for Baring Bros, later ING Barings in several capacities. From 1994 to 1997 he was Global Head of Emerging Markets for Corporate Finance. After ING acquired Barings in 1997 he became Regional Head of Corporate Finance for EMEA in the combined firm, responsible for 500 staff in 11 international offices. Finally, in 1999 he became a member of the European Management Committee in ING Barings Limited, with responsibility for major client relationships and transactions in the region. In this role he he was rsponsible for teams carrying out major transactions in Poland, and capital raisings in the cellular telephone sector in Russia, Romania and Slovakia.

 

From 1986 to 1992 he was Managing Director and Partner in Dillon Read & Co Inc initially based in New York, and subsequently Co-Head of Europe, based in London. In this role he was responsible for developing the successful joint venture in London between Dillon read and Societe Generale de Belgique. He conceived and executed the firm’s strategy in corporate finance, European equity research and brokerage, and asset management, particularly development capital. He acquired extensive experience in the development capital sphere, raising 5 private equity funds in UK, France and Spain, the largest of which raised £200 mn. In 1992. The partners of Dillon Read bought the business from the owners, Travelers Insurance Company of the US. At that time Barings bought a 40% equity stake, conditional on Dillon Read transferring its European operations to Barings. This resulted in Mr Kemball transferring with the business to the Barings organization.

 

From 1975 to 1986 Mr Kemball was Director, Corporate Finance for Kleinwort Benson Limited. From 1984 to 1986 he was based in New York, focusing on US/UK mergers and capital raising. Prior to 1984 he was based in the UK corporate finance department in London, where he worked on a wide range of UK IPOs, equity capital issues, and mergers and acquisitions for publicly quoted companies. This included work on a number of UK privatisations of government owned corporations, requiring close liaison with the UK Treasury and other government departments.

 

From 1968 to 1975, Mr Kemball served in the British Army, achieving the rank of Acting Major. He served in Germany, and saw active service in Northern Ireland and the Sultanate of Oman. He was awarded the MBE (Gallantry) and the Sultan’s Distinguished Service Medal for Gallantry.

 

At the end of 1999 Mr Kemball left ING Barings at his own request to pursue a Non-Executive and advisory career. He is currently a Non-Executive at BPT Plc, The Davis Services Group Plc, and Control Risks Group Limited.

 

Mr Kemball has a degree in law from Cambridge University.

FABIEN CHALANDON

 

NON-EXECUTIVE DIRECTOR, TELNIC LIMITED

 

Fabien Chalandon , 47, is a French national, and is a senior banker for CHART in Europe. He has extensive experience in corporate finance, and from 1992 until recently was a private banker to one of the wealthiest families in France, running their investment company and their personal finances. He has been involved in the Telnic project since the end of 1999, as acting-Chief Executive Officer, and has been responsible for structuring the initial fund-raising to launch the project.

 

Mr Chalandon started his business career with Lazard Freres et Cie in Paris (1977), where he was active in the field of corporate finance in France, as well as business developments in Brazil. He remained with Lazards until 1983, with a one-year interruption, in 1979, when he was Commercial Attache at the French Embassy in Brazil.

 

Between 1883 and 1986, Mr Chalandon ran his own advisory firm, based in London, specialising n the oil-refining and distribution sectors. From 1986 to 1988, Mr Chalandon was a main board director of Parafrance, a French media group, where he carried out a restructuring.

 

From 1988 to 1992 Mr Chalandon was a senior corporate finance executive with the US investment bank Dillon Read, based in its London office, and focussed on extending its French business activities in mergers and acquisitions, private equity investment, and debt financing.

 

Mr Chalandon has extensive business experience in Europe, Brazil, Venezuela, India the Far East, and USA in mergers and acquisitions, private equity, wealth management, and in operating companies in France. Mr Chalandon sits on the boards of four private equity funds, Hibernia Capital Partners in Ireland, Access Capital Partners, Three Cities Research Europe, and Banexi Ventures II in France, is a co-gerant of the Paris based oil-exploration company Madison/CHART  Energy and a board member of  Sogeres, the third largest catering group in France, and of Teraillon Ltd., a world leader in scales.

 

Mr Chalandon is an occasional writer on political topics in several major French daily newspapers, is a graduate of  HEC and a Chevalier de la Legion d’Honneur, the top French honour granted to him for his contribution to french financial and political affairs, at the personal request of the French President, Mr J Chirac.

RAYMOND F PIERCE

 

CHIEF EXECUTIVE OFFICER, TELNIC.    

 

Ray Pierce, 54, is a seasoned senior executive, with experience at the highest level in general management, business development and marketing. He has been involved in the launch and development of three major businesses – Guardian Direct (a subsidiary of Guardian Royal Exchange (GRE) Plc), The Mortgage Corporation (a subsidiary of Salomon Inc), and American Express Financial Services. His senior management career culminated in his appointment in 1997 to the Main Board of GRE, then one of the top-100 companies on the UK Stock Exchange

 

From 1993 to 1999 he worked for GRE, joining the company initially to establish Guardian Direct, a direct insurance underwriter. Guardian Direct grew rapidly, and within 3 years was the third largest direct writer in the UK market for motor, home and health insurance, employing some 1000 staff in a virtual call-centre system. In 1997, Guardian Direct was named winner of the “European Call Centre of the Year” award, for outstanding customer service.

 

During his GRE career, Pierce was also appointed Managing Director for all UK General Insurance, in January 1997, responsible for three major business units and over 5000 staff. He was also responsible for rolling out the Guardian Direct business in other territories, specifically South Africa and Ireland. Finally, in 1997 he was appointed to the GRE Main Board, with worldwide responsibility for Marketing.

 

From 1992 to 1993 he was Chief Executive of Robson Rhodes, Chartered Accountants and Management Consultants. Prior to that period, from 1986 to 1991 he was a founding director of The Mortgage Corporation, a subsidiary of Salomon Inc, based in the UK. Pierce was initially Director of Marketing and Sales, and in 1990 became Chief Executive. From 1982 to 1986 he was a Vice-President with American Express with responsibilities covering the UK and Ireland. He was initially responsible for Strategic Planning and Business Development, and in 1984 became responsible for Consumer Marketing for all Amex Card, Travellers Cheques and Travel products.

 

Pierce has a first degree in Economics and Philosophy from the University of East Anglia, and a post-graduate qualification in Operational Research from Brunel University. He is Chairman of the Council of SPARKS (Medical Research) Charity, and a Trustee of the National Motor Museum in the UK.

 

He is currently Chairman of Dragons Plc, a small quoted UK company in the Health and Fitness sector, and Chairman of Homeowners Friendly Society Limited, a mutual financial organisation.

MARTIN K AUGIER

 

CHIEF FINANCIAL OFFICER AND DIRECTOR OF OPERATIONS    

 

Martin Augier, 49, is an experienced finance and operational executive who has held senior positions in a number of major companies.

 

From 1996 to 1999 he worked for Guardian Royal Exchange  (GRE) initially as the individual in charge of the integration of the RAC Insurance Service acquisition with Guardian Direct.  This required the consolidation of the acquired operation, the closure of 5 different offices and the assimilation of the remainder into the Guardian Direct Operation.  This created a virtual Telephone Service operation in 4 sites with over 1000 people linked.

 

After this he was asked to direct the Y2k project for GRE the parent company in the UK.  This £50m project was swiftly brought under control and GRE  suffered no mishaps on the change of Millennium.  During this period he was made Executive Operations Director for GRE in the UK with a specific remit to restructure the entire operational base of the Company.  In the process of this project the Company was acquired by AXA and Martin elected to accept the termination package to pursue other business ventures.

 

Between 1992 &1996 Martin worked as an Internal Consultant to Hill Samuel Bank a subsidiary of TSB who were going through a very difficult time.  His role consisted mainly of managing the closure, sale or restructuring of a number of operating units of the Bank.  Eventually after the merger of Lloyds & TSB it was decided to close the Bank.

 

During 1989 and 1990 Martin was the Executive Operations Director for the Household Finance Corporation which was going through a major changes and rationalisation.  Martin was responsible in the time he was there for Opening a New Operating Centre for the Bank to handle all the Back Office functions previously handled in the Branches.  This was a £20m project which resulted in the sustained reduction of 150 back office jobs.

 

Prior to this Martin spent 15 years at American Express where he started as an Internal Auditor and ended as Vice president of Operations for the UK.  It was in this job that Martin gained the experience which has served him so well.  He was responsible for all the customer service activities for the American Express Card Operation.  He introduced the EFTPOS programme for American Express in Europe and was responsible for many innovations while he was VP of Operations and Finance Controller for the UK.

 

Prior to working at American Express Martin was an articled clerk at a small firm of Chartered Accountants in London, he qualified at his first attempt and one of the youngest ever to qualify as a Chartered Accountant at the age of 21.

 

Currently Martin is currently involved property development and 3 New Car Franchises in Sussex and also undertakes occasional consulting assignments.

CATHY BOSWORTH HORTON

 

DIRECTOR AND PARTNER OF SQUIRE, SANDERS & DEMPSEY

 

FULL DETAILS ARE INCLUDED IN THE REGISTRY OPERATOR’S PROPOSAL

ALAN PRICE

 

FOUNDER, AND SENIOR EXECUTIVE OF TELNIC LIMITED

 

Alan Price is 45, a UK national, and founding director of Telnic Limited.

 

Mr Price is a telecommunications and Internet expert, with extensive and in-depth knowledge and experience of the technological, business and legal issues raised in this revolutionary medium. Alan Price has a long experience in television and multimedia, this being prior to his work in telecommunications and the Internet. This included a career at Independent Television in the UK, and VideoPitchUK, a multimedia production company providing services to the advertising industry.

 

Since the early 1990's, Mr Price has been an advisor and consultant providing specialist advice and development on multimedia, telecommunications, numbering, interactive and Internet projects. Clients include: British Airways, Daily Mail, RAC, Save & Prosper, Freepages-Scoot, and the establishing of the UK National Lottery. He is also founder and a director of Dial It Communications Limited, a leader in the field of interactive directory and information systems, and the company is also a Telecommunication Service License holder.

 

Mr Price is also an advisor to various groups, including Oftel (the UK telecommunications regulator), and he has been involved on several working and development groups for Oftel including: Developing Numbering Administration, and Provision of Directory Information.

 

Mr Price was a founding member of the Internet Council of Registrars (CORE) when it was originally formed. This was with Networks of the UK, who are now not part of CORE. He developed and led this project with Networks. He is also the founder and developer of NET TVÔ in the UK, a new interactive platform for the converged Internet-television environment.

WILLIAM G HOLMAN

 

NON-EXECUTIVE DIRECTOR, TELNIC LIMITED

 

William Holman has extensive international experience in financial and operational management. His current executive position is as Managing Director, Latin America for Thomson Financial, based in New York. He is responsible for regional development and management of all activities for this $1.4 bn. financial information company. The business is active in local market client development, joint ventures in e-publishing and local Internet information distribution.

 

From 1993 to 1996, Mr Holman held senior positions with ING/Barings in New York, first as President and Chief Executive Office of Baring Brothers and Co., a managed NYSE firm with revenues of $140, involved in research, underwriting and sales of international securities from 28 markets to North American institutional investors. He then became a senior Managing Director in ING/Barings (US) Securities Holdings, where he managed the firm’s equity division, and was a member of the ING Regional Management Committee.

 

From 1988 to 1993 he was with The Thomson Corporation in Stamford Connecticut, where he was a Director of First Call Corporation, a global fixed-income research distribution service for institutions, and prior to that he held the position of Chief Financial Officer of Thomson Financial Services, which was at that time a $500 mn. financial information services group. From 1982 to 1988 he held positions in Shearson Lehman  Brothers and British and Commonwealth Holdings.

 

Mr Holman has degrees from the University of Pennsylvania, New York University and an MBA from Columbia University. He also has a Graduate Diploma from Oxford University, and worked in the fine arts world before entering the financial community.

 

CONTENTS

1.         Table A  1

2.         Interpretation. 1

3.         Shares  ………………………………………………………………………………………………5

4.         Unissued Share Capital 5

5.         Redeemable Shares and purchase of own shares. 6

6.         Annual Accounts and Annual General Meetings. 6

7.         Capital ………………………………………………………………………………………………7

8.         Voting  ………………………………………………………………………………………………7

9.         Conversion. 8

10.       Dividends. 8

11.       Class Rights. 9

12.       Restricted and Permitted Transfers. 9

13.       Pre-emption Rights. 12

14.       Change of Control 16

15.       General Meetings. 17

16.       Directors. 18

17.       Disqualification of Directors. 18

18.       Proceedings of Directors. 19

19.       Powers of Directors. 20

20.       Alternate Directors. 21

21.       Borrowing Powers. 22

22.       Notices to Members. 22

23.       Indemnity and Insurance. 22

 

 

THE COMPANIES ACT 1985

COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION OF TELNIC LIMITED

adopted by Special Resolution passed on September 2000)

 

1. TABLE A

 

1.1. The regulations contained or incorporated in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 as amended as at the date of adoption of these Articles (“Table A”) shall, except where the same are excluded or varied by or are inconsistent with these Articles, apply to the Company.

1.2. The regulations numbered 3, 40, 41, 50, 53, 54, 64 to 68 (inclusive), 73 to 78 (inclusive), 81, 87, 89, 93 to 98 (inclusive) and 112 of Table A shall not apply to the Company and in lieu thereof and in addition to the remaining regulations of Table A (subject to the modifications hereinafter expressed) the Articles hereinafter contained shall constitute the regulations of the Company.

1.3. No other regulations set out in any statute or statutory instrument concerning companies shall apply as regulations of the Company.

 

2. INTERPRETATION

 

2.1. Definitions

In these Articles unless the context otherwise requires:

 

"Accounts" shall have the meaning given to such term in Article 6.1.

 

"Act" means the Companies Act 1985.

 

"Allocation Notice"shall have the meaning given in Article

 

"Annual Business Plan" means the annual business plan of the Company current in respect of each financial year of the Company prepared in accordance with clause 6.4 of the Subscription and Shareholders’ Agreement.

 

"’A’ Ordinary Shares" means the preferred ‘A’ ordinary shares of £0.02 each in the capital of the Company, the rights and restrictions attaching to which are set out in these Articles.

 

"Applicant" shall have the meaning given in Article 13.9.

 

"Appropriate Offer" shall bear the meaning given to such term in Article 14.2.

 

"Completion Articles" means these articles of association in their present form or as amended from time to time and the expressions this Articleand Article shall be construed accordingly.

 

"Board" means the board of directors of the Company from time to time or any duly authorised committee thereof.

 

"Chart Director" means the Director appointed by Chart in accordance with clause 7.4 of the Subscription and Shareholders’ Agreement from time to time.

 

"Companies Acts" means every statute concerning companies and all orders, regulations and other subordinate legislation made under each of them from time to time in force insofar as the same applies to the Company (whether or not called a Companies Act or within the statutory citation of the Act).

 

"Connected person" means a person connected with another within the meaning of Section 839 of the Income and Corporation Taxes Act 1988 and the term “connected with” shall be construed accordingly.

 

"Controlling Interest" means an interest (within the meaning of Section 324, and Part I of Schedule 13 of the Act) in shares in a company conferring, in aggregate, 50 per cent. or more of the total voting rights conferred by all the issued shares in such company.

 

"Conversion Date" mmeans the earlier of a Sale Date, a Listing Date or the first date after the date upon which these Articles are adopted by the Company upon which the Company pays any dividend in respect of any of the Shares (whether such dividend is satisfied by the payment of money by the Company or by the transfer of any of the Company’s assets), if any.

 

"Convertible Deferred Non-Voting Ordinary Shares" means the convertible deferred non-voting ordinary shares of £0.02 each in the capital of the Company.

 

"Deed of Adherence" means a deed supplemental to the Subscription and Shareholders’ Agreement substantially in the form set out in schedule 6 thereof whereby a person who acquires Shares may be bound by, and be entitled to the benefit of, certain provisions of, the Subscription and Shareholders’ Agreement.

 

"Directors" means the directors of the Company from time to time.

 

"Employee" means a director or employee of any Group Company.

 

"Excess Shares" shall have the meaning given in Article 13.9.

 

"Family Transfer" shall have the meaning given in Article 12.4.

 

"Family Trust" means, in relation to any Shareholder or his Privileged Relations, a trust whether arising under:

(A)       a settlement inter vivos; or

(B)       a testamentary disposition; or

(C)       on an intestacy

in respect of which Shares are held and under which no beneficial interest in the Shares in question is for the time being vested in any person other than the Shareholder or a Privileged Relation of such Shareholder and no power of control over the voting rights conferred by such Shares is for the time being exercisable by or subject to the consent of any person other than the trustees of the Family Trust concerned or the Shareholder concerned or his Privileged Relations.

 

"Financial Period" means an accounting period in respect of which the Company prepares its accounts in accordance with the Companies Acts.

 

"First Share Option Scheme" means the unapproved share option scheme in respect of Ordinary Shares to be adopted on or about September 2000, exercisable in accordance with the terms thereof at £ per Ordinary Share.

 

"Founders" means the persons whose names are set out in part 1 of schedule 1 of the Subscription and Shareholders’ Agreement and Founder includes any of them.

 

"Group" means the Company and all the other companies which are subsidiaries of the Company and the expression Group Company shall be construed accordingly.

 

"Investment Fund" shall have the meaning given in Article 12.7(B).

 

"Investment Fund" shall have the meaning given in Article 12.7(A).

 

"Investment Fund" shall have the meaning given in Article 14.2.

 

"Investor Group" means the persons whose names are set out in part 2 of schedule 1 of the Subscription and Shareholders’ Agreement plus any person who has acceded to the Subscription and Shareholders’ Agreement as an Investor, and “Investor” includes any of them.

 

"Investor Majority" means the holders from time to time of at least 50 per cent. (in nominal value) of the ‘A’ Ordinary Shares held by the Investors from time to time.

 

"Issue Price" means, in respect of a Share, the aggregate of the amount paid up or credited as paid up in respect of the nominal value thereof and any share premium thereon.

 

"Listing" means the admission of any part of the equity share capital of the Company to the Official List of the UK Listing Authority and admission to trading on the Stock Exchange or the grant of permission to deal in the same on any other Recognised Investment Exchange.

 

"Listing Date" means the date upon which a Listing becomes effective.

 

"London Stock Exchange" means The London Stock Exchange Limited.

 

"Ordinary Shares" means the ordinary shares of £0.02 each in the capital of the Company, the rights and restrictions attached to which are set out in these Articles.

 

"Original Transferor" shall have the meaning given in Article 12.5.

 

"Privileged Relation" means the wife or husband (or common law wife or husband) or adult child or adult grandchild (including any adopted adult child or adopted adult grandchild) of a Shareholder.

 

"Proportionate Entitlement" shall have the meaning given in Article 13.9.

 

"Recognised Investment Exchange" means a recognised investment exchange within the meaning of Section 207 of the Financial Services Act 1986 or Section 285 of the Financial Services and Markets Act 2000.

 

"Relevant Shares" means (to the extent the same remain for the time being held by a transferee of Shares acquired by means of a transfer permitted by Article 12) the Shares originally transferred to such person and any additional Shares issued to such person by way of capitalisation or acquired by such person in exercise of any right or option granted or arising by virtue of the holding of such Shares or any of them or the membership thereby conferred.

 

"Sale Date" means the date upon which an acquisition of Shares is completed and, as a result, any person (or persons acting in concert with him) acquire a number of equity shares in the capital of the Company as, when aggregated with any such equity shares, if any, held by such person or persons on that date result in such person or persons acquiring a Controlling Interest (and the term Sale shall be construed accordingly).

 

"Sale Price" shall have the meaning given in Article 13.1.

 

"Sale Shares" shall have the meaning given in Article 13.1.

 

"Second Share Option Scheme" means the unapproved share option scheme in respect of Ordinary Shares to be adopted on or about September 2000, exercisable in accordance with the terms thereof at £ per Ordinary Share.

 

"Senior Employee" means an employee of any Group Company whose basic salary exceeds £125,000 per annum

 

"Settlor" shall have the meaning given to such term in Articles 12.3. and 13.3

 

"Shares" means the “A” Ordinary Shares, the Ordinary Shares and the Convertible Deferred Non-Voting Ordinary Shares or any of them as the context so requires, and the expression “Shareholder” shall be construed accordingly.

 

"Stock Exchange" means The London Stock Exchange Limited.

 

"Subscription and Shareholders’ Agreement" means the Agreement dated September 2000 between (1) the Company, (2) the Founders, (3) Chart and (4) the Investors as amended from time to time.

 

"Termination Date" means the date on which a person ceases to be a director or employee of any Group Company and does not continue to be a director or employee of any Group Company.

 

"Total Transfer Condition" shall have the meaning given in Article 13.6.

 

"Transfer Notice" shall have the meaning given in Article 13.1. also include a Transfer Notice deemed to have been served pursuant to any other regulation of these Articles.

 

"Transferor" shall have the meaning given in Article 13.1.

 

"Transferor Group Company" shall have the meaning given in Article 12.5.

 

"Trust Transfer" shall have the meaning given in Article 12.5.

 

"UK Listing Authority" means the competent authority for the time being for the purposes of Part IV of the Financial Services Act 1986 or Part VI of the Financial Services and Markets Act 2000.

 

2.2. Construction

 

(A) Any words or expressions defined in the Companies Acts shall bear the same meaning in these Articles.

 

(B) References to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification).

 

(C) The headings, sub-headings and any contents pages are inserted for convenience only and shall not affect the construction of these Articles.

 

(D) References to a “person” include any individual, company, body corporate, corporation sole or aggregate, government, state or agency of a state, firm, partnership, joint venture, association, organisation or trust (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists) and a reference to any of them shall include a reference to the others.

 

(E) Where for any purpose an ordinary resolution of the Company is required, a special or extraordinary resolution shall also be effective, and where an extraordinary resolution is required a special resolution shall also be effective.

 

3. SHARES

 

3.1              Authorised Share Capital

The share capital of the Company as at the date of the adoption of these Articles is £· divided into · ‘A’ Ordinary Shares, · Ordinary Shares and 8,960 Convertible Deferred Non-Voting Ordinary Shares.

 

3.2              Rights and Restrictions

The special rights and restrictions attached to and imposed on each class of Shares are as set out in these Articles.

 

4. UNISSUED CAPITAL

 

4.1              General

Subject to the provisions of, respectively, the Companies Acts, these Articles, the Subscription and Shareholders’ Agreement and to any direction to the contrary which may be given by ordinary or other resolution of the Company, any unissued Shares (whether forming part of the original or any increased capital) shall be at the disposal of the Directors who may offer, allot, grant options over or grant any right or rights to subscribe for such Shares or any right or rights to convert any security into such Shares or otherwise dispose of them to such persons, at such times, for such consideration and upon such terms and conditions as the Directors may determine.

 

4.2              Authority

For the purposes of Section 80 of the Act and save as hereinafter provided, the Directors are generally and unconditionally authorised to exercise all powers of the Company to allot relevant securities (as defined in the said Section) up to an aggregate nominal amount of £· PROVIDED ALWAYS THAT no relevant securities shall be allotted other than in accordance with the terms of these Articles, the Subscription and Shareholders’ Agreement, the rules of the First  Share Option Scheme and of the Second Share Option Scheme and such authority shall expire at the conclusion of the next annual general meeting of the Company.

 

4.3              Pre-emption

Section 89(1) of the Act shall not apply to the Company.

 

5. REDEEMABLE SHARES AND PURCHASE OF OWN SHARES

 

5.1              Issue, purchase and payment

Subject to the provisions of the Companies Acts and these Articles the Company may:

(A)               issue Shares on terms that they are (or are at the option of the Company or the members concerned) liable to be redeemed;

(B)              purchase shares (including any redeemable shares); and

(C)              make payment in respect of the redemption or purchase (pursuant to Sections 159 and 160 or, as the case may be, Section 162 of the Act and the relevant powers above) of any of its own shares otherwise than out of distributable profits of the Company or the proceeds of a fresh issue of shares to the extent permitted by Sections 171 and 172 of the Act.

6. ANNUAL ACCOUNTS AND ANNUAL GENERAL MEETINGS

 

6.1              Annual Accounts

Within 3 months of the end of each Financial Period, the Directors shall cause to be prepared and, so far as within their power, audited, in accordance with the provisions of the Companies Acts:

(A)               a balance sheet of the Company,  and, if the Company then has any subsidiaries, a consolidated balance sheet of the Company and such subsidiaries as at the end of such Financial Period;

(B)              a profit and loss account of the Company, and, if the Company then has any subsidiaries, a consolidated profit and loss account of the Company and such subsidiaries for such Financial Period; and

(C)              a statement setting out the source and use of the Company’s funds in such Financial Period and, if the Company then has any subsidiaries, a consolidated statement of the source and use of the Company and its subsidiaries’ funds in such Financial Period

including, in each such case, the notes thereto and the directors’ report and auditors’ report thereon (which said balance sheet and profit and loss account, notes and reports are collectively referred to herein as the “Accounts”).

 

6.2              Annual General Meeting

An annual general meeting of the Company shall be held within 4 months of the end of each Financial Period, at such time and place as the Directors shall determine, and the Directors shall cause to be laid before each such annual general meeting the Accounts for the immediately preceding Financial Period together with the respective reports thereon of the Directors and of the Auditors, such reports complying with the provisions of the Companies Acts.

 

7. CAPITAL

 

7.1              Priority

In the event of a winding-up of the Company or other return of capital the assets of the Company available for distribution to shareholders remaining after payment of all other debts and liabilities of the Company and of the costs, charges and expenses of any such winding-up shall be applied in the following manner and order of priority:

(A)               first, in paying to the holders of the ‘A’ Ordinary Shares (in proportion to the numbers of ‘A’ Ordinary Shares held by each of them) all unpaid accruals of any dividends declared but not paid at such date in respect thereof; and

(B)              second, in paying to the holders of the Ordinary Shares (in proportion to the numbers of Ordinary Shares held by each of them) all unpaid accruals of any dividends declared but not paid at such date in respect thereof;

(C)              third, in paying to the holders of the ‘A’ Ordinary Shares (in proportion to the number of ‘A’ Ordinary Shares held by each of them) the Issue Price of such “A” Ordinary Shares; and

(D)              fourth, in paying to the holders of Ordinary Shares (in proportion to the number of Ordinary Shares held by each of them) the Issue Price of such Ordinary Shares; and

(E)              last, in distributing the balance amongst the holders of the ‘A’ Ordinary Shares and the Ordinary Shares pari passu as if they were all shares of the same class.

8. VOTING

 

8.1              General

Subject to any special rights or restrictions as to voting attached to any Shares by or in accordance with these Articles, on a show of hands, every holder of Ordinary Shares and/or of “A” Ordinary Shares who (being an individual) is present in person or by proxy or (being a corporation) is present by a representative not being himself a holder of Ordinary Shares and/or of “A” Ordinary Shares shall have one vote and on a poll every holder of Ordinary Shares and/or of “A” Ordinary Shares who is present in person or by proxy or (being a corporation) is present by a representative or by proxy shall (except as hereinafter provided) have one vote for every Ordinary Share and one vote for every “A” Ordinary Share of which, in each case, he is or represents the holder.  The holders of Convertible Deferred Non-Voting Ordinary Shares shall have no rights to vote in respect of such Convertible Deferred Non-Voting Ordinary Shares, either on a show of hands or on a poll.

 

8.2              Written Resolutions

Subject to the provisions of the Companies Acts, a resolution in writing signed by all the members of the Company who would be entitled to receive notice of and to attend and vote at a general meeting of the Company, or by their duly appointed attorneys, shall be as valid and effectual as if it had been passed at a general meeting of the Company duly convened and held.  Any such resolution may be contained in one document or in several documents in the same terms each signed by one or more of the members or their duly appointed attorneys and signature, in the case of a body corporate which is a member, shall be sufficient if made by a director or the secretary thereof or by its duly authorised representative.

 

9. CONVERSION

 

9.1          Listing and Sale

On a Conversion Date, each of the Convertible Deferred Non-Voting Ordinary Shares then in issue shall automatically convert into one Ordinary Share.  Each Ordinary Share arising on conversion shall be credited as paid up as to the same extent as that to which the Convertible Deferred Non-Voting Ordinary Share which was converted was paid up or credited as paid up.

 

9.2        Mechanics

Any conversion pursuant to this Article 9.1 shall be made on the following terms:

(A)          it shall be effected at no cost to the holders of the Convertible Deferred Non-Voting Ordinary Shares concerned;

 

(B)        on the Conversion Date the Company shall issue to the persons entitled thereto certificates for the Ordinary Shares resulting from the conversion and the certificates for the Convertible Deferred Non-Voting Ordinary Shares falling to be converted shall be deemed invalid for all purposes and the holders thereof shall be bound to deliver their Convertible Deferred Non-Voting Ordinary Share certificates (or such indemnity in lieu thereof as the Company may reasonably require) to the Company forthwith for cancellation; and

 

(C)        the Ordinary Shares arising on conversion of any Convertible Deferred Non-Voting Ordinary Shares shall in all respects rank as one class of shares with the existing Ordinary Shares then in issue.

 

10. DIVIDENDS

 

10.1          General

Subject to the provisions of the Companies Acts and to the provisions of these Articles the Company may by ordinary resolution from time to time declare dividends to be paid to the members according to their respective rights and priorities and interests in the profits available for distribution.

 

10.2          Board

No dividend shall be declared in excess of the amount recommended by the Board and the determination of the Board as to the amount of the profits available for dividends shall be conclusive.

 

10.3          Dividend in specie

The Company may, upon the recommendation of the Board, by ordinary resolution direct payment of a dividend in whole or in part by the distribution of specific assets (and in particular of paid up shares or debentures of any Group Company) and the Board shall give effect to such resolution.

 

10.4          Apportionment

Every dividend shall be apportioned and paid to the appropriate shareholders proportionately according to the amounts of nominal value paid up or credited as paid up on the Shares of the relevant class held by them respectively during any portion or portions of the period in respect of which the dividend is payable and shall accrue on a daily basis and, for the purpose of such apportionment, the Shares shall be treated as if they comprised a single class.

11. CLASS RIGHTS

 

The special rights attached to any class of Shares may (unless otherwise provided by the terms of issue of the Shares of that class) be varied or abrogated, whether or not the Company is being wound up, either with the consent in writing of the holders of 75 per cent. (in nominal value) of the issued Shares of that class or with the sanction of an extraordinary resolution passed at a separate general meeting of such holders, but not otherwise.  All the provisions of these Articles relating to general meetings of the Company shall apply mutatis mutandis to every such separate meeting, except that:

(A)               the necessary quorum shall be two persons present in person or by proxy or by a duly authorised representative of a member which is a corporation, together holding not less than one half (in nominal value) of the issued Shares of the class or, at any adjourned meeting of such holders, one person so present holding not less than one-quarter (in nominal value) of the issued Shares of the relevant class; and

(B)              any holder of shares of the class present in person or by proxy or by a duly authorised representative of a member which is a corporation may demand a poll.

12. RESTRICTED AND PERMITTED TRANSFERS

12.1          General Restriction

(A)             Convertible Deferred Non-Voting Ordinary Shares may not be transferred, and references in Article 12 and Article 13 to “Shares” shall, accordingly, be read as references to all Shares other than Convertible Deferred Non-Voting Ordinary Shares.

 

(B)            Prior to the earlier of a Listing Date and a Sale Date and, save as provided in Articles 12.2, 12.3, 12.4, 12.5, 12.6 and 12.7 and in respect of any Shares which are the subject of a Transfer Notice served (or deemed to have been served) under Articles 12.4(B) 12.5(B), 13.2, 13.3, 13.5 or 13.7, no Shares and no beneficial interest therein may be transferred.  Prior to the earlier of a Listing Date or a Sale Date, no transfer of Shares by any Shareholder may be registered unless the transferee shall have delivered to the Company a duly executed Deed of Adherence.

12.2          Appropriate Offer

           Any Shares may be transferred pursuant to an Appropriate Offer.

 

12.3         Trust Transfers

A transfer of any Shares held by a Shareholder or a Privileged Relation of a Shareholder (the “Settlor”) may be made to trustees upon a Family Trust and, on a change of trustees, by such trustees to the new trustees of the same Family Trust without restrictions as to price or otherwise (a “Trust Transfer”) PROVIDED THAT:

(A)               the Company will not incur any costs in connection with the setting up or administration of the Family Trust concerned; and

(B)              before a Trust Transfer is effected, the trustees of such Family Trust shall give a written notice to the Company (in a form reasonably acceptable to the Company) that there is no provision under the terms of the Family Trust which would expressly prohibit the trustees thereof from (a) giving, on a Sale or Listing, such warranties and indemnities (subject only to reasonable limits upon such trustees’ liability) as trustees of such Family Trust to enable such Sale or Listing to be effected and (b) observing any restrictions (whether relating to the disposal of any Relevant Shares comprised in the assets of such Family Trust or otherwise) pursuant to the arrangements relating to the Sale or Listing.  Such notice shall also include an acknowledgement from the trustees that they may be asked to give warranties and indemnities in connection with a Sale or a Listing and may be asked to restrict distributions in respect of any Relevant Shares to the beneficiaries under such Family Trust during any period in which there are outstanding contingent liabilities under such warranties and indemnities.

12.4          Family Transfers

A Shareholder may transfer all or any of his holding of Shares or any beneficial interest therein for whatever consideration to his Privileged Relations (a "Family Transfer") and a Privileged Relation or the trustees of a Family Trust of a Shareholder may transfer all or any of his (or its) Relevant Shares or any beneficial interest therein to another Privileged Relation of that Shareholder or to that Shareholder (also a "Family Transfer") PROVIDED THAT:

(A)               before a Family Transfer is effected, the transferee shall give a written acknowledgement to the Company (in a form reasonably acceptable to the Company) that, in the event of a Sale or Listing, such transferee may be asked to give warranties and indemnities (subject only to reasonable limits on liability) to enable such Sale or Listing to be effected and that such transferee will observe any restrictions upon him (whether relating to the disposal of any Relevant Shares (if any) held by him immediately after such Sale or Listing or otherwise) pursuant to the arrangements relating to the Sale or Listing; and

(B)              subject as provided below any person who acquires, whether directly or indirectly, any shares or any beneficial interest therein pursuant to this Article 12.4 shall serve forthwith, (or if he does not he shall be deemed to have served, a Transfer Notice in respect of the Relevant Shares) if the person is a spouse of a Shareholder and she ceases to be the spouse of that Shareholder PROVIDED ALWAYS THAT if the Shareholder remains a Shareholder at that time and the Shareholder so notifies his former spouse within 14 days of the shareholder ceasing to be the spouse of the Shareholder concerned, the former spouse of that Shareholder shall be obliged to offer the Relevant Shares in question to that Shareholder or to a Privileged Relation of that Shareholder or to the trustees of a Family Trust of that Shareholder for a consideration equivalent to the consideration originally paid by such spouse, if any, and the proposed transferee shall have 7 days to accept such offer before the provisions of Article 11 shall apply to those Shares, but in default of such transfer and if the former spouse does not serve a Transfer Notice, such spouse shall be deemed to have served a Transfer Notice and the provisions of Article 13 shall apply accordingly.

12.5          Intra-group Transfers

A transfer of any shares (or any beneficial interest therein) in the Company held by any Shareholder (an “Original Transferor”) may be made between the Original Transferor and any subsidiary company of the Original Transferor or any holding company of the Original Transferor or another subsidiary of such holding company or between one subsidiary of such holding company and such holding company or any other such subsidiary (any such body corporate being referred to, for the purposes of this Article 12.5, as an “Transferor Group Company”) without restriction as to price or otherwise PROVIDED THAT if subsequently the transferee ceases to be an Transferor Group Company, such transferee shall:

(A)               forthwith notify the Company in writing that such event has occurred; and

(B)              within 7 days of such notification transfer the Relevant Shares to the Original Transferor, or failing such transfer, or where the Original Transferor is no longer an Investor, such transferee shall be bound to serve, or if it does not serve it shall be deemed to have served, a Transfer Notice in respect of such Relevant Shares and the provisions of Article 13 shall apply accordingly.

12.6          Nominees

A transfer of any shares in the Company held by a Shareholder as a nominee or on trust for one or more beneficial owners may be made between that Shareholder and any other nominee or trustee of any such beneficial owner for the time being or any such beneficial owner without restriction as to price or otherwise.

 

12.7          Investment Funds and Investment Managers

A transfer of any Shares (or any beneficial interest therein) held by a Shareholder (or a nominee of a Shareholder) who is:

(A)               a person whose principal business is to make, manage or advise upon “investments”(within the meaning of Part I of Schedule I of the Financial Services Act 1986 for so long as it remains in force, and thereafter Part 2 of Schedule 2 of the Financial Services and Markets Act 2000) (an “Investment Manager”); or

(B)              a fund, partnership, company, syndicate, trust or other entity the principal purpose of which is to make investments and whose assets are managed by an Investment Manager (an “Investment Fund”) or a partner or trustee of an Investment Fund being a partnership or trust; or

(C)              a nominee of an Investment Manager or an Investment Fund

may be made without restriction as to price or otherwise between such Shareholder (or its nominee) and:

(1)          where the Shareholder (or his (or its) nominee) is an Investment Manager or a nominee of an Investment Manager, (a) any participant or partner in or member of any Investment Fund in respect of which the Shares are held, (b) any other Investment Fund whose business is managed by the Shareholder (or whose nominee is the Shareholder) or (c) any other Investment Manager who manages the business of the Investment Fund in respect of which the Shares are held; or

(2)          where the Shareholder is an Investment Fund or a partner or trustee of an Investment Fund being a partnership or trust or a nominee of an Investment Fund (a) any participant or partner in or member of the Investment Fund which is or whose nominee is the Shareholder or of which the Shareholder is a partner or trustee, (b) any other Investment Fund whose business is managed by the same Investment Manager as the Investment Fund which is or whose nominee is the Shareholder or of which the Shareholder is a partner or trustee or (c) the Investment Manager who manages the business of the Investment Fund which is or whose nominee is the Shareholder or of which the Shareholder is a partner or trustee (or a nominee on behalf thereof).

12.8          Change of Trustees

Subject to the overriding duty of a trustee to act in the best interest of the trust of which he is a trustee, any member of the Company who is the trustee of a Family Trust shall procure that there is no change of trustees of any Family Trust of which he is a trustee which holds Shares or to the powers of the trustees of such a trust or of the beneficiaries of such a trust or the allocation of benefits between such beneficiaries without in each case the prior consent of the Company.  Without prejudice to any other consequences of failure to comply with this Article 12.8, while there is any default under this Article 12.8 any Shares held by any Shareholder who is so in default shall not be capable of being transferred and if the Company gives notice in writing to the defaulting member requiring such default to be remedied within 7 days of the date of such notice and such 7 days notice expires without either the default being remedied or the defaulting member making proposals in respect of such default, being proposals accepted by the Company, then no dividends or other distributions shall be payable in respect of and no votes shall attach to any such shares while the default continues.

 

13. PRE-EMPTION RIGHTS

 

13.1          Transfer Notice

Other than in the case of a transfer permitted by Article 12, any member of the Company (a “Transferor”) wishing to dispose of any of his shares in the Company or any legal or beneficial interest therein (“Sale Shares”) shall give notice in writing (a “Transfer Notice”) to the Company that he wishes to dispose of one or more of his Sale Shares.  If the capital of the Company is divided into separate classes of shares a separate Transfer Notice shall be given for each class of Sale Shares proposed to be sold.  Every Transfer Notice shall:

(A)               constitute the Company as the agent of the Transferor for the sale of the Sale Shares in accordance with this Article 13 at the sale price (the “Transfer Price”);

(B)              specify the number and class of Sale Shares;

(C)              if the Transferor has reached an agreement or an arrangement with an independent third party for the sale of the Sale Shares, state the name of such independent third party and the price per share at which Sale Shares are proposed to be sold to such independent third party;

(D)              be accompanied by the certificates for the Sale Shares (or such indemnity in lieu thereof as the Company may reasonably require); and

(E)              not be revocable except with the consent of the Directors.

13.2          Employee Transfers

Any Employee who ceases to be an employee or director of any Group Company and does not continue to be an employee or director of any Group Company shall, within 14 days of the Termination Date, serve a Transfer Notice (and if no such Transfer Notice has been served within such period, then the required Transfer Notice shall be deemed to have been served) in respect of all the Shares held by him at the Termination Date.  If any Employee is required to serve a Transfer Notice pursuant to this Article 13.2 or would be so required if he held Shares, then any Privileged Relation of such Employee shall also serve a Transfer Notice in respect of the Shares held by such Privileged Relation in relation to which the relevant Employee would be required to serve a Transfer Notice pursuant to this Article 13.2 if he held those Shares and such Transfer Notice shall be given within 14 days of the Termination Date, or if no such Transfer Notice has been served within such period then the required Transfer Notice shall be deemed to have been served.  In these Articles any reference to any Employee ceasing to be an employee or director of a Group Company or any reference in equivalent terms shall be deemed to include a reference to the termination of any agreement between the Group Company and any other company or entity for the provision by such company or entity of the services of the relevant Employee to the Group Company.  A person entitled to Shares in consequence of the death or bankruptcy of an Employee or one of his Privileged Relations shall be bound to give a Transfer Notice in respect of all such Shares unless such person be (or shall within 14 days of becoming so entitled transfer such shares to) a person to whom they may be transferred pursuant to Articles 12.3 or 12.4 and regulations 29 to 31 inclusive of Table A shall take effect accordingly and, in default thereof, the required Transfer Notice shall be deemed to have been served.

 

13.3          Family Trusts

If any Employee or Privileged Relation would be required to serve a Transfer Notice pursuant to Article 13.2 if he held shares in the Company and such Employee or Privileged Relation has made a Trust Transfer (also a “Settlor”), then the trustees of such Family Trust shall serve a Transfer Notice in respect of the shares in the Company held by the trustees of such Family Trust in relation to which the Settlor would have been required to serve a Transfer Notice pursuant to Article 13.2 if he held those shares.  Such Transfer Notice shall be given within 14 days of the Termination Date of the Employee concerned and if no such Transfer Notice has been served within such period then the required Transfer Notice shall be deemed to have been served.

 

13.4          Shares Transferred

For the purposes of this Article 13 the words "Sale Shares" shall include Shares comprised in a Transfer Notice served or deemed to have been served pursuant to Article 12.5(B), Article 13.2, Article 13.3, Article 13.5 or Article 13.14 and the word “Transferor” shall include any person who is required to give or is deemed to have given a Transfer Notice pursuant to such provisions.

 

13.5          Deemed Transfers

A Transfer Notice shall also be deemed to have been served by any Transferor who purports to transfer Sale Shares other than in accordance with Article 12 or this Article 13 without serving a Transfer Notice (including, without limitation, if the Directors declare that a Transfer Notice has been deemed to have been served pursuant to Article 13.14) and, in those circumstances, the Transfer Notice shall:

(A)               constitute the Company the agent of the Transferor, in accordance with Article 13.1(A);

(B)              be deemed to apply to the number and class of Sale Shares purported to have been transferred;

(C)              entitle the Company to require the details referred to in Article 13.1(B) and 13.1(C);

(D)              entitle the Company to require delivery to it of the certificate for the Sale Shares (or such indemnity as the Company may reasonably require)[; and

(E)              be deemed not to include a Total Transfer Condition.]

 

13.6          Total Transfer Condition

A Transfer Notice, other than a Transfer Notice served or deemed to have been served pursuant to Articles 12.4(B), 12.5(B) 13.2, 13.3, 13.5 or 13.14 may provide that, unless all the Sale Shares referred to therein and in such other Transfer Notice served by the same member at the same time are sold to the persons offered the same or purchased by the Company pursuant to Article 13.12, none shall be sold (a “Total Transfer Condition”).

 

13.7          Transferor excluded

For the purposes of determining the Shareholders to whom Sale Shares comprised in a Transfer Notice should be offered, the Transferor in respect of the relevant Transfer Notice(s) shall be deemed not to be a member of the Company.

 

13.8          Pre-emption rounds

The Company shall, as soon as reasonably practicable, give notice in writing to each of the Shareholders informing them that the Sale Shares are available for transfer and of the Transfer Price and shall invite each member to state in writing within 10 days from the date of the said notice (which date shall be specified therein) whether he is willing to purchase any and, if so, how many of the Sale Shares.  Sale Shares of the class specified in column (1) below shall be treated as offered in the first instance to shareholders holding shares set out in the corresponding line of Column (2) below in priority to all other classes of shareholder and in so far as such offer shall not be accepted by such persons shall be treated as having been declined by them and as having been offered to all of the shareholders holding the classes of shares shown in Columns (3), (4) and (5) below in that order of priority as regards acceptances:

 

(1) Sale Shares	(2) Offered firstly to	(3) Offered secondly to
Ordinary Shares	Ordinary Shares	“A” Ordinary Shares
‘A’ Ordinary Shares	‘A’ Ordinary Shares	Ordinary Shares

 

13.9         Proportionate entitlements

The Sale Shares shall be offered to each class of shareholder on terms that, in the event of competition, the Sale Shares offered shall be sold to the members accepting the offer in proportion (as nearly as may be) to their existing holdings of shares of the class to which the offer is made (their “Proportionate Entitlement”).  Each member may specify whether he is willing to purchase Sale Shares in excess of his Proportionate Entitlement (“Excess Shares”) and if he does so he shall state the number of Excess Shares.  After the expiry of the offers made pursuant to Article 13.8 or sooner if all the Sale Shares offered shall have been accepted, the Board shall, in respect of each offer made to the holders of the categories of shares referred to in Columns (2) to (5) (inclusive) of Article 13.8, allocate the Sale Shares within 7 days in the following manner:

(A)               if the total number of shares applied for is equal to or less than the available number of Sale Shares, the Company shall allocate the Sale Shares applied for in accordance with the applications received; or

(B)              if the total number of shares applied for is more than the available number of Sale Shares, each member shall be allocated his Proportionate Entitlement or such lesser number of Sale Shares for which he may have applied and applications for Excess Shares shall be allocated in accordance with the applications received or, in the event of competition, as nearly as may be to each member who has applied for Excess Shares in the proportion which shares of the relevant class held by such member bears to the total number of shares of that class held by all such members applying for Excess Shares PROVIDED ALWAYS THAT no member shall be allocated more shares than he shall have stated himself willing to take

and in either case the Company shall forthwith give notice of each such allocation (an “Allocation Notice”) to the Transferor and each of the persons to whom Sale Shares have been allocated (an “Applicant”) and shall specify in the Allocation Notice the place and time (being not later than [14] days after the date of the Allocation Notice) at which the sale of the Sale Shares shall be completed PROVIDED ALWAYS THAT the transfer and completion of the sale of the Sale Shares shall not be sanctioned or effected by the Board if such transfer would, when completed, constitute a Sale unless an Appropriate Offer has been made and completed in accordance with Article 14.

 

13.10      Allocations

Subject to Article 13.11, upon such allocations being made as aforesaid, the Transferor shall be bound, on payment of the Transfer Price, to transfer the Sale Shares comprised in the Allocation Notice to the Applicant(s) named therein at the time and place specified therein.  If the Transferor defaults in so doing the chairman for the time being of the Board or, failing him, one of the other Directors or some other person duly nominated by a resolution of the Board for that purpose, shall forthwith be deemed to be the duly appointed attorney of the Transferor with full power to execute, complete and deliver in the name and on behalf of the Transferor a transfer or transfers of the relevant Sale Shares to the Applicant(s) and any Director may receive and give a good discharge for the purchase money on behalf of the Transferor and (subject to the transfer(s) being duly stamped) enter the name of the Applicant(s) in the register of members as the holder(s) of the shares so purchased.  The Company shall forthwith pay the purchase money into a separate bank account in the Company’s name and shall hold such money on trust (without interest) for the Transferor until the Transferor shall deliver up to the Company his certificate(s) (or such indemnity in lieu thereof as the Company may reasonably require) for the relevant shares when the Transferor shall thereupon be paid the purchase money.

 

13.11      Further Invitation

If the Transferor shall have validly included a Total Transfer Condition in the Transfer Notice and if the total number of shares applied for by Applicants is less than the aggregate number of Sale Shares, then any Allocation Notices shall refer to the Total Transfer Condition and shall contain a further invitation open for 14 days to the Applicants to apply for further Sale Shares and completion of the sale of the Sale Shares in accordance with the foregoing provisions of this Article 13 shall be conditional upon the Total Transfer Condition being complied with.

 

13.12      Purchase by the Company

If the Company shall not find a transferee for any or, if the Transfer Notice validly contains a Total Transfer Condition, all of the Sale Shares in accordance with the foregoing provisions of this Article 13, the Company may, subject to the provisions of the Companies Acts exercise its power to purchase any of the shares comprised in the Transfer Notice for which a transferee has not been found.

 

13.13      Exhaustion of Pre-emption Provisions

In the event of all the Sale Shares not being sold or purchased by the Company under the foregoing provisions of this Article 13, the Transferor may at any time within 3 calendar months after receiving notice from the Company that the pre-emption provisions of this Article 13 have been exhausted transfer any Sale Shares not sold to any person or persons at any price not less than the Transfer Price PROVIDED ALWAYS THAT:

(A)               the Board shall be entitled to refuse registration of the proposed transferee if the proposed transferee is or is believed to be a person or a nominee for a person reasonably considered by the Board to be a competitor (or connected with a competitor) of the business of the Group PROVIDED ALWAYS THAT the Board shall not be so entitled to refuse registration if the effect of such transfer would, when completed, constitute a Sale and an Appropriate Offer has been made and would, on the completion of the transfer, be completed in accordance with Article 14;

(B)              if the Transferor validly included a Total Transfer Condition in the Transfer Notice, the Transferor shall not be entitled, save with the written consent of all the other members of the Company, to sell only some of the Sale Shares comprised in the Transfer Notice to such person or persons;

(C)              any such sale shall be a bona fide sale and the Board may require to be satisfied in such manner as it may reasonably require that the Sale Shares are being sold in pursuance of a bona fide sale for not less than the Transfer Price without any deduction, rebate or allowance whatsoever to the purchaser and, if not so satisfied, may refuse to register the instrument of transfer; and

(D)              the Board shall refuse registration of the proposed transferee if such transfer would, when completed, constitute a Sale until such time as an Appropriate Offer has been made and completed in accordance with Article 14.

13.14      Verification

For the purpose of ensuring that a transfer of Shares is duly authorised hereunder and that no circumstances have arisen whereby a Transfer Notice is required to be served hereunder the Directors may from time to time require any member or past member or the personal representatives or trustee in bankruptcy, receiver or liquidator of any member or any person named as transferee in any instrument of transfer lodged for registration to furnish to the Company such information and evidence as the Directors may reasonably think fit regarding any matter which they may deem relevant for the purpose of this Article 13.14.  Failing such information or evidence being furnished to the reasonable satisfaction of the Directors within a reasonable time after request, the Directors shall be entitled to refuse to register the transfer in question or, if no transfer is in question, to declare by notice in writing that a Transfer Notice shall have been deemed to have been served in respect of the Shares concerned.  If such information or evidence discloses that, in the reasonable opinion of the Directors, a Transfer Notice ought to have been served in respect of any shares the Directors may also by notice in writing declare that a Transfer Notice has been deemed to have been served in respect of the Shares concerned.

 

 

14. CHANGE OF CONTROL

 

14.1          Restriction

Save as provided in Article 12, no sale or transfer of the legal or beneficial interests in any Shares may be made or validly registered unless and until all the conditions set out in Article 14.2 and, if appropriate, Article 14.3 are (and each continues to be) satisfied.

14.2          Conditions

The conditions referred to in Article 14.1 are:

(A)               the proposed transferee or his nominee (being an independent third party acting in good faith (the “Offeror”) has offered to purchase all the Shares not held by the Transferor or the Offeror at such date (including any Shares resulting from the exercise of options in accordance with the provisions of the First Share Option Scheme or the Second Share Option Scheme), as the case may be, at the Transfer Price;

(B)              the offer referred to in 14.2(A), being in writing, has been open for acceptance in England for at least 21 days with adequate security as to the performance of the obligations of the Offeror; and

(C)              the Offeror completes the purchase of all the Shares in respect of which the offer referred to in paragraph (B) are accepted at the same time;

and, for the purposes of these Articles, an offer which complies with the conditions set out in this Article 14.2 shall be known as an “Appropriate Offer”.

 

14.3          Drag-Along

In the event that a Controlling Interest would be obtained in the Company on the registration of a transfer and the conditions set out in Article 14.2 have been fulfilled, the Company shall give notice thereof to all the Shareholders who have not tendered acceptances who shall be bound upon payment of the Transfer Price to sell or transfer their entire legal or beneficial interest (as the case may be) in such Shares (and to execute transfers and pre-emption waivers in respect of the same) to the Offeror and if any shareholder, after having become bound to transfer his legal or beneficial interests (as the case may be) as aforesaid, defaults in respect of his obligations under this Article the Company may receive the purchase money tendered by the Offeror and the relevant shareholder shall be deemed to have appointed any one Director as his agent to execute a transfer of the Shares which are the subject of the offers concerned to the Offeror and any pre-emption waivers in respect of the same and, upon the execution of such documents and receipt of the purchase monies from the Offeror, the Company shall pay the purchase money into a separate bank account in the Company’s name and hold such money on trust (without interest) for such shareholder until he shall deliver up to the Company his certificate(s) for the relevant Shares (or such indemnity in lieu thereof as the Company may reasonably require) when he shall thereupon be paid the purchase money.  The receipt of the Company for the purchase money shall be a good discharge to the Offeror and after the Offeror's name has been entered on the register of members in exercise of the power conferred by this Article 14.3, the validity of the proceedings shall not be questioned by any person.

 

14.4        Supremacy

All other regulations of the Company relating to the transfer of Shares or any interests and the right to registration of transfers shall be read subject to the provisions of this Article 14.

 

 

15. GENERAL MEETINGS

 

15.1          Quorum

No business shall be transacted at any general meeting unless a quorum is present.  A quorum shall consist of two persons entitled to vote upon the business to be transacted, each being a Shareholder or a proxy for a member or a duly authorised representative of a Shareholder corporation together holding or being entitled to vote in respect of not less than 50 per cent. (in nominal value) of the Shares PROVIDED THAT if a quorum is not present within thirty minutes after the time appointed for the meeting, the meeting shall be adjourned until two days later at the same time and place or at such other time or place as the Directors may determine and at such adjourned meeting a quorum shall consist of any two persons entitled to vote on the business to be resolved, each being a Shareholder or a proxy for such Shareholder or a duly authorised representative of a Shareholder corporation, together holding or being entitled to vote in respect of not less than 25 per cent. (in nominal value) of the Shares.

15.2          Polls

One Shareholder present in person or by proxy or by their duly authorised representative (if a Shareholder corporation) or the chairman of the Board may demand a poll and regulation 46 of Table A shall be deemed to be varied accordingly.

 

 

16. DIRECTORS

 

16.1          Number

Unless and until the Company in general meeting shall otherwise determine, the number of Directors shall not be less than 8.  Subject to and to clause 8 of the Subscription and Shareholders’ Agreement the Company may by ordinary resolution appoint a person who is willing to act to be a Director either to fill a vacancy or as an additional Director.

 

16.2          Information

Subject to clause 14 (Confidentiality) of the Subscription and Shareholders’ Agreement any person appointed as a Chart Director or his alternate shall be entitled to pass to the Investors any information concerning the Group which may come into his (or its) possession through his (or its) position as a Chart Director or as an alternate Chart Director.  Subject to clause 16 of the Subscription and Shareholders’ Agreement, each Investor (which for the purpose of this Article 16.2 shall include any employee, officer or professional adviser of an Investor) or any member of the Investor Group of any of the Investors shall be entitled to share with any other Investor any information concerning the Group which may come into its possession as shareholder or agent for a shareholder or by reason of the terms of these Articles or the Subscription and Shareholders’ Agreement.  For the purpose of this Article 16.2, the “Investor Group” in relation to an Investor shall mean those persons to which an Investor is entitled to transfer Shares without restriction under Article 12.5.

 

 

17. DISQUALIFICATION OF DIRECTORS

 

17.1          Retirement

No Director shall vacate his office or be ineligible for appointment or re-appointment as a Director by reason only of his having attained any particular age, nor shall special notice be required of any resolution appointing or approving the appointment of such a Director or any notice be required to state the age of the person to whom such resolution relates.

 

17.2          Vacation of Office

The office of a Director shall be vacated if:

(A)               he is prohibited from being a director by an order made under any of Sections 1 to 5 (inclusive) of the Company Directors Disqualification Act 1986 or any act replacing such act;

(B)              he becomes bankrupt or a receiving order is made against him or he makes any arrangement or composition with his creditors generally;

(C)              he becomes incapable, by reason of mental disorder, illness or injury, of managing and administering his property and affairs;

(D)              by notice in writing to the Company he resigns his office; or

(E)              he ceases to be a Director by virtue of section 293 of the Act.

 

 

18. Proceedings of Directors

 

18.1          Quorum

(A)               The quorum for the transaction of the business of the Directors shall be one-half, in number, of the Directors at the material time.  PROVIDED THAT one such Director shall be the Independent Non-Executive Chairman and two such Directors shall be Non-Executive Directors (which, for these purposes, shall include the Chart Director, the Investor Director and the Independent non-Executive Directors, as those respective terms are defined in the Subscription and Shareholders’ Agreement).

(B)              If a quorum is not present within thirty minutes after the time appointed for the meeting, the meeting shall be adjourned until 2 days later at the same time and place or at such other time or place as the Directors may determine and at such adjourned meeting a quorum shall consist of any 3 Directors PROVIDED THAT one of the Directors shall be either the Independent Non-Executive Chairman or a Non-Executive Director.

 

18.2          Alternates

A person who holds office only as an alternate director shall, if his appointer is not present, be counted in the quorum.

 

18.3          Table A

In regulation 79 of Table A the second and third sentences thereof shall be deemed to be deleted and in regulation 84 of Table A the last sentence thereof shall be deemed to be deleted.

 

18.4          Casting Vote

The Independent Non-Executive Chairman of the Board shall have a second or casting vote and regulation 88 of Table A shall be varied accordingly.  It shall be necessary to give notice of a meeting of the Board to the Special Director notwithstanding that he is absent from the United Kingdom and regulation 88 of Table A shall be varied accordingly.

 

18.5          Written Resolutions

A resolution in writing signed or approved by letter, facsimile or telex by all the Directors for the time being entitled to receive notice of such a meeting shall be as effective as a resolution passed at a meeting of the Directors duly convened and held and may consist of several documents in the same terms each signed or approved by one or more of the Directors.

 

18.6          Telephone Meetings etc

Meetings of the Directors may be held by telephone or audio-visual communication (whereby all persons participating in the meeting can hear and speak to each other simultaneously) PROVIDED ALWAYS THAT the number of Directors participating in such communication is not less than the quorum stipulated by these Articles and such meetings shall, subject to notice thereof having been given in accordance with these Articles, be as effective as if the Directors had met in person.  A resolution made by a majority of the said Directors in pursuance of this Article shall be as valid as it would have been if made by them at a meeting duly convened and held in person.

 

 

19. POWERS OF DIRECTORS

 

19.1          Interests in Contracts

Subject to compliance with the provisions of Section 317 of the Act, a Director shall be entitled to vote in respect of any contract or arrangement or proposed contract or arrangement in which he is interested and if he shall do so his vote shall be counted and he may be taken into account in ascertaining whether a quorum is present.

 

19.2          Reserved Matters

Any decision by the Company on any of the following matters shall require the approval of the Board at a duly convened meeting thereof and, accordingly, cannot be delegated to, nor decided upon by, any individual Director or committee of Directors:

(A)               the purchase by the Company of any or assets (of whatsoever nature) in respect of which the aggregate price to be paid by the Company exceeds £500,000;

(B)              the borrowing by the Company of any sum in excess, alone or in aggregate, of £500,000;

(C)              the entering into by the Company of any contract or arrangement under which the aggregate amount payable or receivable by the Company thereunder exceeds £500,000;

(D)              employing, dismissing or changing the terms of employment of any Director or Senior Employee;

(E)              the taking of any steps by or on behalf of the Company which would or might result in any Listing or Sale becoming unconditional or completed;

(F)               the sale, assignment, transfer or disposal of the entire undertaking, business or assets of the Company or any substantial part of such undertakings, businesses or (except in the ordinary course of business) assets;

(G)              the sale, assignment, transfer or disposal of any part of the Company’s interest in any share capital or loan capital in any company;

(H)              the acquisition by the Company of the whole or part of either (a) the issued share or loan capital of any company or other body corporate which is not a wholly-owned subsidiary of the Company or (b) the assets, business or undertaking of any body corporate, partnership, firm or unincorporated association;

(I)                  the application (a) by way of capitalisation of any sum in or towards paying up any shares, debenture or debenture stock (whether secured or unsecured) of the Company or (b) of any amount standing to the credit of the share premium account or capital redemption reserve of the Company for any purpose;

(J)                the calling of a meeting of the Company for the purpose of considering, or the passing of, a resolution for the winding-up of the Company (except in case of insolvency);

(K)              the calling of a meeting of the Company for the purpose of considering, or the passing of, a resolution to approve a contract by the Company to purchase any of the Company’s shares;

(L)               the calling of a meeting of the Company for the purpose of considering, or the passing of, a resolution to amend the memorandum of association of the Company or these Articles;

(M)              any alteration to the size of the Board;

(N)              any alteration (including cessation) to the nature of the business of the Company such as to constitute a material alteration to its business;

(O)             the creation of any mortgage, charge or other encumbrance over any of the assets of the Company (other than any other encumbrance arising by operation of law in the ordinary course of business or by way of lien or retention of title);

(P)              any change to the accounting reference date of the Company or any change to the accounting principles, policies or methods of the Company or any subsidiary except to the extent required by the Act or by any accounting standard;

(Q)             the appointment or removal of the Company’s auditors;

(R)              the establishment by the Company of any bonus, incentive, profit sharing or share option scheme or the provision, in accordance with any such share option scheme, by the Company of money for the acquisition of shares;

(S)              the giving by the Company of any guarantee, bond or indemnity in respect of or to secure the liabilities or obligations of any person (other than a wholly-owned subsidiary of the Company);

(T)               the making or execution of any arrangements, contracts or transaction which are of an unusual or onerous or long term nature, or outside the normal course of the business of the Company as its business is then presently carried on, or otherwise than on arms’ length terms or incurring any liability of such nature;

(U)              the Company selling, transferring, leasing, licensing or otherwise acquiring or disposing of any of its assets other than at full market value (except for disposals of stock at a discount in the ordinary course of business); or

(V)               the payment of any dividend by the Company.

 

 

20. ALTERNATE DIRECTORS

 

20.1          Nomination

Each Director shall have power, by notice in writing under his hand addressed to the secretary of the Company (which shall take effect on the service thereof at the registered office of the Company), to nominate any other Director or any person to act as his alternate and at his discretion to remove such alternate director.  On such appointment being made the alternate director shall be for all purposes counted as a Director and, except as regards remuneration and the power to appoint an alternate, shall, while so acting, be entitled to exercise and discharge all the functions, powers and duties of the Director whom he represents.  Any person acting as alternate shall in the absence of his appointor have a vote for each Director for whom he acts as alternate in addition, where such person is a Director, to his own vote but shall not be considered as more than one Director for the purpose of making a quorum of Directors. 

 

20.2          Removal

An alternate director shall cease to be an alternate director if his appointor ceases for any reason to be a Director or on the happening of any event which if the alternate were a Director would cause him to vacate such office.  An alternate director shall, during his appointment, be an officer of the Company and shall not be deemed to be an agent of his appointor.  An appointment of an alternate shall not prejudice the right of the appointor to receive notice of and to attend and vote at meetings of the Board.  An alternate director shall not be entitled to any remuneration from the Company.

 

 

21. BORROWING POWERS

 

21.1          Subject to clause 6.1(H)(3) of the Subscription and Shareholders’ Agreement and as otherwise provided herein, the Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking property and uncalled capital, or any part thereof, and, subject also to the provisions of the Companies Acts and any resolutions of the Company in general meeting passed pursuant thereto, to issue debentures, debenture stock and other securities, whether outright or as security for any debt, liability or obligation of the Company or of any third party.

 

22. NOTICES TO MEMBERS

 

22.1          A notice may be given by the Company to any member either personally or by sending it by prepaid first class post, airmail or facsimile to his registered address or to any other address supplied by him to the Company for the giving of notice to him.  In the case of notice of a meeting, a properly addressed and prepaid notice sent by post shall be deemed to have been served, at an address within the United Kingdom, at the expiry of 48 hours after the notice is posted and, at an address outside the United Kingdom, at the expiry of 72 hours after the notice is posted.  Where a notice is given by facsimile, service of the same shall be deemed to be effected upon receipt of telephone or other confirmation of its receipt.

 

 

23. INDEMNITY AND INSURANCE

 

23.1          Indemnity

In addition to the indemnity contained in regulation 118 of Table A and subject to the provisions of Section 310 of the Act, every Director, agent, secretary and other officer of the Company shall be entitled to be indemnified out of the assets of the Company against all losses or liabilities properly incurred by him in or about the execution and discharge of the duties of his office and, in regulation 118 of Table A, the words “or auditor” shall be omitted.

 

23.2          Insurance

Without prejudice to the provisions of regulation 118 of Table A and subject to the provisions of Section 310 of the Act, the Directors shall have power to purchase and maintain insurance for or for the benefit of any persons who are or were at any time Directors, officers or employees of any Group Company or who are or were at any time, following the date of adoption of these Articles, trustees of any pension fund in which any employees of any Group Company are interested including (without prejudice to the generality of the foregoing) insurance against any liability incurred by such persons in respect of any act or omission in the actual or purported execution and/or discharge of their duties and/or in the exercise or purported exercise of their powers and/or otherwise in relation to their duties, powers or offices in respect of any Group Company or any such pension fund.