SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, For Use of the Commission Only
(as Permitted by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.14a-11(c) or ss.14a-12
SAVILLE SYSTEMS PLC
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11.
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
Schedule 14A (Definitive Proxy Material)
(3) Filing Party:
Saville Systems PLC
(4) Date Filed:
April 21, 1999
<PAGE>
NOTICE OF ANNUAL GENERAL MEETING
of
SAVILLE SYSTEMS PLC
Notice is hereby given that the Annual General Meeting of Saville Systems
PLC (the "Company") will be held at the Great Southern Hotel, Shannon, Ireland,
on May 18, 1999 at 10:00 a.m. local time, to consider and act upon the following
matters:
1. To consider the audited accounts of the Company for the year ended
December 31, 1998 and the Reports of the Directors and the Accountants
thereon.
2. To re-elect William F. Cunningham, Fergus G. McGovern and David P.
Mixer as Class I Directors of the Company to serve for a three-year term.
3. To pass the special resolution set forth in Exhibit A to the
accompanying Proxy Statement, which resolution proposes certain amendments
to the Company's Articles of Association required to obtain a listing of
the Company's Ordinary Shares on the Irish Stock Exchange.
4. To pass the special resolution set forth in Exhibit B to the
accompanying Proxy Statement, which resolution authorizes the Company, in
the discretion of the Board of Directors and subject to the listing of the
Company's Ordinary Shares on the Irish Stock Exchange, to purchase up to
5,000,000 of the Company's Ordinary Shares and authorizes the Company to
reissue any such Ordinary Shares purchased by it and not cancelled.
5. To ratify the appointment of PricewaterhouseCoopers LLP as the
Company's independent accountants for the current fiscal year.
6. To authorize the Directors to determine the remuneration of the
independent accountants.
7. To authorize the holding of the 2000 Annual General Meeting of the
Company in North America.
8. To transact such other business as may properly come before the
meeting or any adjournment thereof.
BY ORDER OF THE BOARD OF DIRECTORS
Peter H. Quinlan
Secretary
April 21, 1999
Registered Office: IDA Business Park, Dangan, Galway, Ireland
A SHAREHOLDER ENTITLED TO ATTEND AND VOTE AT THE ANNUAL GENERAL MEETING IS
ENTITLED TO APPOINT A PROXY (WHO NEED NOT BE A MEMBER OF THE COMPANY) TO ATTEND,
SPEAK AND VOTE INSTEAD OF SUCH SHAREHOLDER. A FORM OF PROXY IS ENCLOSED.
WHETHER OR NOT YOU EXPECT TO ATTEND THE ANNUAL GENERAL MEETING, PLEASE COMPLETE,
DATE AND SIGN THE ENCLOSED PROXY AND MAIL IT PROMPTLY IN THE ENCLOSED ENVELOPE
IN ORDER TO ENSURE REPRESENTATION OF YOUR SHARES. NO POSTAGE NEED BE AFFIXED TO
THE ENCLOSED PROXY IF MAILED IN THE REPUBLIC OF IRELAND.
<PAGE>
SAVILLE SYSTEMS PLC
IDA Business Park
Dangan
Galway, Ireland
PROXY STATEMENT
for the Annual General Meeting of Shareholders
to be held on May 18, 1999
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors (the "Board") of Saville Systems PLC (the
"Company") for use at the Annual General Meeting of Shareholders to be held on
May 18, 1999 (the "Annual General Meeting") and at any adjournment of that
meeting. All proxies will be voted in accordance with the shareholders'
instructions, and, if no choice is specified, the proxies will be voted in favor
of the matters set forth in the accompanying Notice of Annual General Meeting.
To be valid, a proxy must be deposited not less than 48 hours prior to the
time appointed for the holding of the Annual General Meeting at (i) the
registered office of the Company or (ii) the registered office of the Registrar
for the Ordinary Shares, Computer Share Services (Ireland) Limited, Heron House,
Corrig Road, Sandyford Industrial Estate, Dublin 18 (each, the "Registered
Office"). Any proxy may be revoked by a shareholder at any time before its
exercise by (i) voting in person at the Annual General Meeting, (ii) delivery of
a subsequently dated proxy to the Registered Office, provided that such
subsequently dated proxy must be received at the Registered Office not less than
48 hours prior to the time appointed for the holding of the Annual General
Meeting or (iii) delivery of written revocation of such proxy, provided that
such written revocation must be received at the Registered Office not less than
one hour prior to the time appointed for the holding of the Annual General
Meeting.
The Company's Annual Report to Shareholders for the year ended December 31,
1998 was mailed to shareholders, along with these proxy materials, on or about
April 21, 1999.
A copy of the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Securities and Exchange Commission ("SEC"),
except for exhibits, will be furnished without charge to any shareholder upon
written request to the Secretary of the Company at Saville Systems PLC, IDA
Business Park, Dangan, Galway, Ireland or at One Van de Graaff Drive,
Burlington, Massachusetts 01803, U.S.A.
Voting Securities and Votes Required
At the close of business on March 23, 1999, there were outstanding and
entitled to vote an aggregate of 39,112,486 Ordinary Shares of the Company,
$0.0025 nominal value per share, constituting all of the voting shares of the
Company. All shareholders of record at the time appointed for the holding of the
Annual General Meeting are entitled to vote at the Annual General Meeting. All
ordinary shares of the Company, including those represented by American
Depositary Shares of the Company ("ADSs") are referred to herein as the
"Ordinary Shares." All references in this Proxy Statement to past transactions
in the Company's Ordinary Shares reflect the 2-for-1 stock split in the form of
a 100% share dividend of Ordinary Shares effective November 7, 1997.
Three shareholders, each appearing in person or represented by proxy, shall
constitute a quorum for the transaction of business at the Annual General
Meeting.
The Bank of New York, as depositary (the "Depositary"), is the shareholder
of record in respect of those Ordinary Shares represented by ADSs. The Company
has requested the Depositary, and the Depositary is required pursuant to the
Deposit Agreement, to mail to all owners of American Depository Receipts
("ADRs") representing ADSs of the Company (the "Owners") a notice, the form of
which notice will be in the sole discretion of the Depositary, containing (a)
the information included in the notice of meeting received by the Depositary
from the Company, (b) a statement that the Owners as of the close of business on
a specified record date will be entitled, subject to any applicable provision of
Irish law and of the Memorandum and Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Ordinary Shares or other deposited securities
represented by their respective ADSs, (c) a statement that Owners who instruct
the Depositary as to the exercise of their voting rights will be deemed to have
instructed the Depositary or its authorized representative to call for a poll
(i.e., a written vote) with respect to each matter for which instructions are
given, subject to any applicable provisions of Irish law and of the Company's
Memorandum and Articles of Association and (d) a statement as to the manner in
which such instructions may be given, including an express indication that
instructions may be given or deemed given to the Depositary to give a
discretionary proxy to a person designated by the Company, as described in the
next paragraph. Upon the written request of an Owner, received on or before the
date established by the Depositary for such purpose, the Depositary will
endeavor, insofar as practicable, to vote or cause to be voted the amount of
Ordinary Shares or other deposited securities represented by the ADSs evidenced
by such Owner's ADRs in accordance with the nondiscretionary instructions set
forth in such request. Accordingly, pursuant to the Company's Memorandum and
Articles of Association and applicable Irish law, the Depositary will cause its
authorized representative to attend each meeting of holders of Ordinary Shares
and call for a poll as instructed in accordance with clause (c) above for the
purpose of effecting such vote. The Depositary will not vote or attempt to
exercise the right to vote that attaches to the Ordinary Shares or other
depositary securities, other than in accordance with such instructions or deemed
instructions.
The Deposit Agreement provides that if no instructions are received by the
Depositary from any Owner with respect to any of the deposited securities
represented by the ADSs evidenced by such Owner's ADRs on or before the date
established by the Depositary for such purpose, the Depositary will deem such
Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such deposited securities and
the Depositary will give a discretionary proxy to a person designated by the
Company to vote such deposited securities, under circumstances and according to
the terms as set forth in the Deposit Agreement; provided, that no such
instructions will be deemed given and no such discretionary proxy will be given
with respect to any matter as to which the Company informs the Depositary in
writing that the Company does not wish such proxy to be given.
Voting at the Annual General Meeting of Shareholders is by a show of hands
unless a poll (i.e., a written vote) is duly demanded. Votes may be given either
personally or by proxy. Subject to the Company's Memorandum and Articles of
Association and to any rights or restrictions attaching to any class or classes
of shares, on a show of hands each shareholder present in person and every proxy
has one vote but so that no individual can have more than one vote, and on a
poll each shareholder shall have one vote for each share of which he is the
holder. Where there is an equality of votes, whether on a show of hands or on a
poll, the Chairman of the meeting is entitled to a casting vote in addition to
any other vote he may have. A poll may be demanded by (i) the Chairman of the
meeting, (ii) at least three shareholders present (in person or by proxy)
entitled to vote at the meeting, (iii) any shareholder or shareholders present
(in person or by proxy) representing not less than one-tenth of the total voting
rights of all the shareholders entitled to vote at the meeting, or (iv) any
shareholder or shareholders present (in person or by proxy) holding shares
conferring the right to vote at the meeting being shares on which there have
been paid up sums in the aggregate equal to not less than one-tenth of the total
sum paid up on all the shares conferring that right. The Depositary has agreed
to demand a poll at general meetings of shareholders in respect of every
resolution on which the Depositary has been instructed by an owner to vote.
The affirmative vote of a majority of the votes cast by the holders of
Ordinary Shares voting on the matter is required for the approval of Proposals
1, 2, 5, 6 and 7 set forth below for consideration at this Annual General
Meeting. The affirmative vote of 75% of the votes cast by holders of outstanding
Ordinary Shares is required for the approval of Proposals 3 and 4 set forth
below for consideration at this Annual General Meeting.
Ordinary Shares that abstain from voting as to a particular matter, and
shares held in "street name" by a broker or nominee who indicates on a proxy
that he or she does not have discretionary authority to vote such shares as to a
particular matter, will not be counted as votes in favor of such matter, and
also will not be counted as shares voted on such matter. Accordingly,
abstentions and "broker non-votes" will have no effect on the voting on matters,
including all matters presented for shareholder approval at this Annual General
Meeting, that require the affirmative vote of a certain percentage of the shares
voting on the matter.
PROPOSAL I
CONSIDERATION OF THE AUDITED ACCOUNTS OF THE COMPANY
FOR THE YEAR ENDED DECEMBER 31, 1998
AND THE REPORTS OF THE DIRECTORS
AND THE ACCOUNTANTS THEREON
Under Irish Company law, the shareholders of the Company are required to
consider the audited accounts of the Company for the year ended December 31,
1998 and the Reports of the Directors and the Accountants thereon which were
included in the Company's Annual Report to Shareholders for the year ended
December 31, 1998, as mailed to the shareholders of the Company along with these
proxy materials. Under Irish Company law, the Directors are required to lay the
accounts before the Annual General Meeting. In addition, under the Company's
Articles of Association, the shareholders must be requested to pass a resolution
that the accounts be considered. However, there is no legal requirement that
such a resolution be passed or that the accounts be otherwise approved by the
shareholders.
PROPOSAL II
ELECTION OF DIRECTORS
Under Irish Company law, the Company must have a minimum of two directors.
The Company's Articles of Association set the maximum number of directors of the
Company at twelve, which number may be changed by an ordinary resolution of the
shareholders. The Company's Board of Directors is divided into three classes,
with members of each class holding office for staggered terms. There are
currently three Class I Directors, whose terms expire at the 1999 Annual General
Meeting of Shareholders, four Class II Directors, whose terms expire at the 2000
Annual General Meeting of Shareholders, and three Class III Directors, whose
terms expire at the 2001 Annual General Meeting of Shareholders (in all cases
subject to the election of their successors and to their earlier death,
resignation or removal).
The Chairman of the Annual General Meeting, as the person named in the
enclosed proxy, will vote to elect William F. Cunningham, Fergus G. McGovern and
David P. Mixer as Class I Directors for a three-year term, unless authority to
vote for the election of any of the nominees is withheld by marking the proxy to
that effect. Messrs. Cunningham, McGovern and Mixer are currently Class I
Directors of the Company. Each of the nominees has indicated his willingness to
serve, if elected, but if any of them should be unable or unwilling to stand for
election, proxies may be voted for a substitute nominee designated by the Board
of Directors.
Set forth below are the name, age and certain information with respect to
each director of the Company, including the three nominees for Class I Director.
Nominees for
Class I Director
William F. Cunningham. Mr. Cunningham, age 54, has been a director of the
Company since March 1995. Since August 1998, Mr. Cunningham has served as
President of Turnberry Financial Corporation, a financial advising company. Mr.
Cunningham was a senior partner with McGovern, Hurley, Cunningham, a
Toronto-based chartered accounting firm which he co-founded, from 1984 until his
retirement in July 1998. Mr. Cunningham is a member of the Canadian Institute of
Chartered Accountants, the Canadian Tax Foundation and the Estate Planning
Council of Toronto.
Fergus G. McGovern. Mr. McGovern, age 70, has been a director of the
Company since June 1995. From January 1989 until his retirement in April 1994,
Mr. McGovern was Chief Executive Officer of Telecom Eireann, a national
telecommunications operating company in the Republic of Ireland. Mr. McGovern
has also served on the Executive Committee of the Confederation of Irish
Industry, as Chairman and President of the Irish Management Institute, as
Trustee of the International Institute of Communications and as Chairman of
Cablelink, the largest cable television company in the Republic of Ireland. He
is currently a member of the Board of the Graduate School of Business of
University College Dublin.
David P. Mixer. Mr. Mixer, age 46, has been a director of the Company since
April 1994. Since its inception in March 1989, Mr. Mixer has been a Managing
Director of Columbia Capital Corporation, a Virginia-based investment services
company specializing in the telecommunications industry. Since 1988, Mr. Mixer
has also been the President of Bay Cellular, a cellular communications company.
Class II Directors
John A. Blanchard III. Mr. Blanchard, age 56, has been a director of the
Company since December 1994. Since May 1995, Mr. Blanchard has served as
President and Chief Executive Officer of Deluxe Corporation, a publicly-held
company that provides paper-based and electronic products and services to
financial institutions and large retailers. From January 1994 through April
1995, he served as Executive Vice President of General Instrument Corporation, a
publicly-held electronics systems and components company. Mr. Blanchard is also
a member of the Board of Directors of Deluxe Corp. and Wells Fargo and Company.
Brian E. Boyle. Mr. Boyle, age 51, has been a director of the Company since
January 1995. Since February 1996, Mr. Boyle has served as Vice Chairman of
Boston Communications Group, Inc., a wireless communications company, and as
Chairman, New Wireless Services of that company from January 1994 to February
1996. Mr. Boyle is also a member of the Board of Directors of MicroFinancial,
Inc.
Richard A. Licursi. Mr. Licursi, age 51, has been a director of the Company
since December 1994. In June 1994, Mr. Licursi founded Phoenix Wireless Group,
Inc., a developer of software-based systems and services for wireless
telecommunications, and served as its President and Chief Executive Officer
until January 1998. From November 1992 to June 1994, Mr. Licursi served as
Senior Vice President of the Worldwide Telecom Delivery Unit of SHL Systemhouse,
Inc., a telecommunications software provider.
John W. Sidgmore. Mr. Sidgmore, age 47, has been a director of the Company
since December 1994. Since June 1994, Mr. Sidgmore has been the President and
Chief Executive Officer of UUNet Technologies, Inc., a provider of worldwide
internet services. Since December 1996, Mr. Sidgmore also has served as the
Chief Operating Officer and Vice Chairman of WorldCom Inc., now, MCI/WorldCom, a
provider of long distance, internet and telecommunication services. From 1989 to
June 1994, Mr. Sidgmore served as President and Chief Executive Officer of CSC
Intelicom. Mr. Sidgmore is also a member of the Board of Directors of
MCI/WorldCom and Earthlink Network Inc.
Class III Directors
John J. Boyle III. Mr. Boyle, age 52, has served as the Company's President
and Chief Executive Officer since August 1994 and as the Company's Chairman of
the Board of Directors since April 1, 1998. From 1981 to August 1994, Mr. Boyle
served in various management positions with CSC Intelicom, a global supplier of
information technology, most recently as Senior Vice President of Work
Process/Network Practice.
James B. Murray, Jr. Mr. Murray, age 52, has been a director of the Company
since January 1994. Since its inception in March 1989, Mr. Murray has been a
Managing Director of Columbia Capital Corporation. Mr. Murray is also a member
of the Board of Directors of Advanced Radio Telecom Corp.
Bruce A. Saville. Mr. Saville, age 54, founded the Company in 1982 and
served as the Company's President and Chief Executive Officer until becoming the
Company's Chairman of the Board of Directors in August 1994. Effective April 1,
1998, Mr. Saville stepped down as the Company's Chairman. Mr. Saville continues
to serve as a director of the Company and as Chairman Emeritus.
Executive officers of the Company are generally elected by the Board of
Directors on an annual basis and serve at the Board's discretion. No family
relationships exist among any of the executive officers or directors of the
Company.
Board and Committee Meetings
The Company has a standing Audit Committee of the Board of Directors, which
reviews the Company's independent accountants' performance in the annual audit,
reviews auditors' fees, discusses the Company's internal accounting control
policies and procedures and considers and recommends the selection of the
Company's independent accountants. The Audit Committee met three times during
the year ended December 31, 1998. The current Audit Committee members are
Messrs. Cunningham (Chairman), Licursi and Mixer.
The Company has a standing Compensation Committee of the Board of
Directors, which sets the compensation levels of executive officers of the
Company (subject to review by the Board of Directors), provides recommendations
to the Board regarding compensation programs of the Company, administers and
authorizes option grants to all employees under the Company's 1995 Share Option
Plan and administers the Company's 1996 Employee Share Purchase Plan. The
Compensation Committee met five times during the year ended December 31, 1998.
The current members of the Compensation Committee are Messrs. Murray (Chairman),
Brian Boyle and Cunningham.
The Board of Directors met nine times during the year ended December 31,
1998. Each incumbent director attended at least 75% of the aggregate of the
number of Board meetings and the number of meetings held by all committees on
which they then served except John A. Blanchard III who attended 44% of such
meetings.
Compensation of Directors
The Company's non-employee directors each receive IR(pound)650, plus
reasonable travel and out-of-pocket expenses, for each meeting of the Board of
Directors they attend and are entitled to participate in the Company's 1995
Share Option Plan (the "1995 Option Plan"). Directors who serve on the Audit
Committee or Compensation Committee receive IR(pound)325 for each such Committee
meeting attended.
<PAGE>
EXECUTIVE COMPENSATION
Compensation of Executive Officers
Summary Compensation Table. The following table sets forth certain
information with respect to the annual and long-term compensation for the last
three fiscal years of the Company's Chief Executive Officer and the Company's
four other most highly paid executive officers whose annual salary and bonus for
1998 exceeded $100,000 (collectively, the "Named Executive Officers"):
SUMMARY COMPENSATION TABLE
<TABLE>
Long-Term
Compensation
Annual Compensation (1) Award(s)(2)
--------------------------------
Restricted Securities All Other
Stock Underlying Compensation
Name and Principal Position Year Salary($) Bonus($) Awards(s) ($) Options(#) ($)
--------------------------- ---- --------------------- ------------- ---------- ---
<S> <C> <C> <C> <C> <C> <C>
John J. Boyle, III 1998 $350,000 $0 $-- 135,000 $--
President, Chief Executive 1997 284,193 284,662 1,031,175 (3) 200,000 --
Officer and Chairman 1996 224,700 168,525 -- 10,838 --
Lawrence S. Barker 1998 224,000 0 -- 65,000 --
Executive Vice President, 1997 (4) 52,311 40,313 -- 100,000 --
Operations 1996 -- -- -- -- --
Marc J. Venator 1998 210,000 0 -- 65,000 --
Senior Vice President, 1997 165,375 82,688 -- 120,000 --
Operations 1996 157,500 47,250 -- 5,642 15,591
John J. Kiley 1998 195,000 0 -- 65,000 --
Executive Vice President,. 1997 157,500 78,750 -- 100,000 --
Global Sales and Marketing 1996 150,000 85,000 -- -- --
Andrew Campbell (5) 1998 162,000 0 -- 65,000 --
Senior Vice President, and 1997 (6) 139,760 43,500 -- 100,000 --
Chief Technology Officer 1996 -- -- -- -- --
</TABLE>
(1) In accordance with the rules of the SEC, other compensation in the form of
perquisites and other personal benefits has been omitted because such
perquisites and other personal benefits constituted less than the lesser of
$50,000 or 10% of the total annual salary and bonus for each Named
Executive Officer.
(2) The Company does not have a long-term incentive plan. The Company did not
grant any restricted stock awards or stock appreciation rights during the
years ended December 31, 1996 and December 31, 1998.
(3) Mr. Boyle received an award of 30,000 shares of restricted stock on
December 1, 1997 that vest in five equal annual installments. The value of
the vested and unvested shares of such restricted stock at December 31,
1998 was $569,925. Dividends will be paid on the shares of restricted stock
only when and as dividends are paid on the Ordinary Shares of the Company.
(4) Mr. Barker began employment with the Company on October 6, 1997.
(5) Amounts reflected in this section for 1997 have been converted into U.S.
dollars at the exchange rate in effect on December 31, 1997 as reported in
the New York Times on that date (US $1.00 = CDN $1.43 equivalent to CDN
$1.00 = US $0.70) and for 1998 the exchange rate in effect on December 31,
1998 as reported in the New York Times on that date (US $1.00 = CDN $1.54
equivalent to CDN $1.00 = US $0.65).
(6) Mr. Campbell began employment with the Company on January 13, 1997.
<PAGE>
Option Grant Table. The following table sets forth certain information
regarding options granted during the year ended December 31, 1998 by the Company
to the Named Executive Officers.
OPTION GRANTS DURING YEAR ENDED DECEMBER 31, 1998
<TABLE>
Individual Grants
-------------------------------------------------
Percent of
Total Potential Realizable
Number of Options Value at Assumed
Securities Granted to Exercise Annual Rates of Stock
Underlying Employees Price Market Price Price Appreciation For
Options in Fiscal on Grant Expiration Option Term(1)
Name Granted (#) Year ($/Sh) Date Date 5% ($) 10% ($)
- ---- ----------- ---- ------ ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
John J. Boyle, III 35,000 (2) 1.33% $15.00 $12.81 9/21/08 $205,457 $638,131
100,000 (3) 3.80% 38.33 38.00 1/5/08 2,357,300 6,023,721
Lawrence S. Barker 15,000 (2) .57% 15.00 12.81 9/21/08 88,053 273,485
50,000 (3) 1.90% 38.33 38.00 1/5/08 1,178,650 3,011,861
Marc J. Venator(4) 15,000 (2) .57% 15.00 12.81 9/21/08 88,053 273,485
50,000 (3) 1.90% 38.33 38.00 1/5/08 1,178,650 3,011,861
John J. Kiley 15,000 (2) .57% 15.00 12.81 9/21/08 88,053 273,485
50,000 (3) 1.90% 38.33 38.00 1/5/08 1,178,650 3,011,861
Andrew Campbell 15,000 (2) .57% 15.00 12.81 9/21/08 88,053 273,485
50,000 (3) 1.90% 38.33 38.00 1/5/08 1,178,650 3,011,861
</TABLE>
(1) These columns show the hypothetical gains or option spreads of the options
granted based on the fair market value of the Ordinary Shares on the date
of grant and assumed annual compound share appreciation rates of 5% and 10%
over the full term of the options. The assumed rates of appreciation are
mandated by the rules of the SEC and do not represent the Company's
estimate or projection of future share prices. Actual gains, if any, on
option exercises will depend on the timing of such exercise and the future
performance of the Company's Ordinary Shares. Values shown are net of the
option exercise price, but do not include deductions for taxes or other
expenses associated with the exercise.
(2) Options vested fully on January 26, 1999 based on achievement of 1998
earnings targets.
(3) Option vesting is dependent on achievement of certain market price
objectives for the Ordinary Shares. Based on the market price of the
Ordinary Shares as of December 31, 1998, options will vest one-third on
January 5, 1999 and the remaining two-thirds on January 5, 2008.
(4) Mr. Venator left the Company subsequent to December 31, 1998 and the expiry
date of these options will be April 29, 1999.
<PAGE>
Year-End Option Table. The following table sets forth certain information
regarding options exercised during the year ended December 31, 1998 and stock
options held as of December 31, 1998 by the Named Executive Officers.
AGGREGATE OPTION EXERCISES AS OF DECEMBER 31, 1998
AND YEAR-END OPTION VALUES
<TABLE>
Number of Securities Value of Unexercised
Shares Value Underlying Unexercised In The Money
Acquired on Realized Options at Fiscal Year-End Options at Fiscal Year
Exercise (#) ($)(1) End(2)
--------------------------------------------------------------
Exercisable Unexercisable Exercisable Unexercisable
<S> <C> <C> <C> <C> <C> <C>
John J. Boyle, III 90,000 $4,032,044 580,186 235,000 $7,089,323 $140,000
Lawrence S. Barker -- -- 33,333 131,667 -- 60,000
Marc J. Venator 137,552 2,886,992 -- 115,000 -- 60,000
John J. Kiley 115,000 2,396,658 5,000 115,000 23,338 60,000
Andrew Campbell 10,000 265,625 23,333 131,667 -- 60,000
</TABLE>
(1) The values in this column represent the last reported sale price of the
Ordinary Shares on the respective date of exercise, less the respective
option exercise price.
(2) Value is based on the closing sales price of the Company's Ordinary Shares
on December 31, 1998 ($19.00), the last trading day of the Company's 1998
fiscal year, less the applicable option exercise price.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act, as amended (the "Exchange
Act") requires the Company's executive officers and directors, and persons who
are beneficial owners of more than 10% of a registered class of the Company's
equity securities, to file reports of ownership and changes in ownership with
the SEC. Officers, directors and greater than 10% beneficial owners are required
by SEC regulations to furnish the Company with copies of all Section 16(a) forms
they file.
To the Company's knowledge, based solely on a review of the copies of such
reports furnished to the Company by the executive officers, directors and
greater than 10% beneficial owners, all Section 16(a) filing requirements were
satisfied, except that: (i) Messrs. Blanchard, John J. Boyle, Brian Boyle,
Cunningham, Kiley, Licursi, McGovern, Mixer, Murray, Saville, Shulist and
Venator each inadvertently failed to file a Form 5 for 1997; (ii) Messrs. John
J. Boyle, Saville, Shulist and Venator each inadvertently failed to file a Form
5 for 1996; (iii) Mr. John J. Boyle inadvertently failed to file three Forms 4
to report six transactions in 1997; (iv) Mr. Kiley inadvertently failed to file
one Form 4 to report one transaction in 1996 and one Form 4 to report two
transactions in 1997; (v) Mr. Mixer inadvertently failed to file one Form 4 to
report one transaction in 1996, three Forms 4 to report seven transactions in
1997 and three Forms 4 to report twenty-three transactions in 1998; (vi) Mr.
Murray inadvertently failed to file one Form 4 to report one transaction in
1996, three Forms 4 to report seven transactions in 1997 and three Forms 4 to
report twenty-three transactions in 1998; and (vii) Mr. Venator inadvertently
failed to file two Forms 4 to report six transactions in 1996 and one Form 4 to
report three transactions in 1997.
<PAGE>
Agreements with Named Executive Officers
The Company is a party to an employment agreement with Mr. John J. Boyle,
III for the five-year period from August 1, 1997 to August 1, 2002. Pursuant to
the agreement, Mr. Boyle serves as President and Chief Executive Officer of the
Company through April 1, 1998, as President, Chief Executive Officer and
Chairman of the Board of the Company from April 1, 1998 through July 31, 1999
and as a Director of the Company through August 1, 2002. That period could be
extended further if agreed upon by Mr. Boyle and the Board of Directors.
Pursuant to the agreement, Mr. Boyle's base salary is determined by the Board of
Directors. During the final two years of the agreement, when Mr. Boyle has
agreed to serve as a Director of the Company, the Company will not be obligated
to pay him a salary. In addition to his base salary, Mr. Boyle is eligible to
receive an incentive bonus of up to 100% of his base salary at the end of each
calendar year in which he serves as Chief Executive Officer or Chairman of the
Board of the Company. The amount of any such bonus is dependent upon Mr. Boyle's
individual performance and the overall financial performance of the Company with
respect to the applicable calendar year.
In connection with Mr. Boyle's agreement to continue to be associated with
the Company for five years, the Board of Directors agreed, in October 1997, to
issue to Mr. Boyle 30,000 Ordinary Shares at a purchase price of $0.0025 per
share. The shares issued to Mr. Boyle are subject to a Stock Restriction
Agreement which requires Mr. Boyle to contribute to the capital of the Company
any shares which have not vested at the time that Mr. Boyle ceases to be a
member of the Company's Board of Directors. The Stock Restriction Agreement also
prohibits Mr. Boyle from transferring any of the shares for so long as they are
not vested. Of the shares purchased by Mr. Boyle, 6,000 shares vested on August
1, 1998 and, thereafter, 6,000 shares vest on August 1 of each year until all
shares have vested as of August 1, 2002.
The Company may terminate Mr. Boyle's employment at any time with or
without cause. In the event the Company terminates Mr. Boyle's employment
without cause, if Mr. Boyle resigns or if Mr. Boyle's duties are materially
diminished such that his ability to function as Chief Executive Officer is
impaired, he is eligible to receive the amount of his salary and the maximum
bonus payment to which he would have been entitled to receive for the lesser of
one year or the period from the date of termination to July 31, 1999. Such
payment shall be made in equal monthly installments over the period during which
Mr. Boyle would be entitled to receive such payments if still employed by the
Company.
COMPENSATION COMMITTEE
REPORT ON EXECUTIVE COMPENSATION
The Company's executive compensation program is administered by the
Compensation Committee, which is currently comprised of Messrs. Murray
(Chairman), Brian Boyle and Cunningham. The Compensation Committee is
responsible for determining the compensation package of each executive officer
and recommending it to the Board of Directors. In the year ended December 31,
1998, the Board of Directors did not modify or reject in any material way any
action or recommendation of the Compensation Committee. In making decisions
regarding executive compensation, the Compensation Committee considers the input
of the Company's other directors, including the input of Mr. John J. Boyle, III
with respect to the compensation of the Company's executive officers other than
Mr. John J. Boyle, III.
Policies and Philosophy
The Company's executive compensation program is structured and administered
to achieve three broad goals in a manner consistent with shareholder interests.
First, the Compensation Committee structures executive compensation programs and
decisions regarding individual compensation in a manner that the Compensation
Committee believes will enable the Company to attract and retain key executives.
Second, the Compensation Committee establishes compensation programs that are
designed to reward executives for the achievement of specified business
objectives of the Company. Finally, the Compensation Committee designs the
Company's executive compensation programs to provide executives with long-term
ownership opportunities in the Company in an attempt to align executive and
shareholder interests.
In evaluating both individual and corporate performance for purposes of
determining salary and bonus levels and share option grants, the Compensation
Committee places significant emphasis on the extent to which strategic and
business plan goals are met, including the progress and success of the Company
with respect to matters such as achieving operating budgets, establishing
strategic licensing, distribution and development relationships, product
development and enhancement of the Company's licensing position, as well as on
the Company's overall financial performance.
Executive Officer Compensation in Fiscal 1998
The compensation programs for the Company's executive officers established
by the Compensation Committee consist of three elements based upon the foregoing
objectives: (i) base salary and benefits competitive with the marketplace, (ii)
bonus packages and (iii) share-based equity incentives in the form of
participation in the 1995 Option Plan. The Compensation Committee believes that
providing a base salary and benefits to its executive officers that are
competitive with the marketplace enables the Company to attract and retain key
executives. In addition, the Compensation Committee believes that bonuses based
on both corporate and individual performance provide incentives to its executive
officers that align their interests with those of the Company as a whole. The
Compensation Committee generally provides executive officers with discretionary
share option awards to reward them for achieving specified business objectives
and to provide them with long-term ownership opportunities. In evaluating the
salary and bonus level and equity incentives to award to each current executive
officer, the Compensation Committee examines the progress which the Company has
made in areas under the particular executive officer's supervision, such as
development or sales, the overall performance of the Company, and the
compensation for similar executives within the industry. Two-thirds of each
executive officer's bonus and equity awards are based upon specific goals or
milestones that are established at the beginning of each fiscal year. Additional
bonus and equity awards are based upon each executive officer's compensation
after taking into account actions by such officer to accomplish established
Company goals. During 1998, executive bonuses were awarded in the form of
additional stock options in lieu of cash, at the election of the executive, as a
means of enhancing focus on overall 1998 financial performance.
In determining the salary and bonus of each executive officer, including
the Named Executive Officers, the Compensation Committee and the Board of
Directors consider numerous factors such as (i) the individual's performance,
including the expected contribution of the executive officer to the Company's
goals, (ii) the Company's long-term needs and goals, including attracting and
retaining key management personnel and (iii) the Company's competitive position,
including data on the payment of executive officers at comparable companies that
are familiar to members of the Compensation Committee. The companies described
under the caption "Comparative Stock Performance" below constitute a much
broader group of companies at various stages of development than those
considered by the Compensation Committee to compare compensation levels of the
Company's executive officers. Rather, the companies used by the Compensation
Committee to compare executive compensation are companies of which the members
of the Compensation Committee have specific knowledge and are considered as of
the time those companies were at similar stages of development as the Company.
To the extent determined to be appropriate, the Compensation Committee also
considers general economic conditions and the historic compensation levels of
the individual. The Compensation Committee believes that the salary levels of
its executive officers are in the middle third when compared to the compensation
levels of companies at similar stages of development as the Company.
Share option grants made pursuant to the 1995 Option Plan in the year ended
December 31, 1998 were designed to make a portion of the overall compensation of
the executive officers receiving such awards vary depending upon the performance
of the Company's Ordinary Shares on the Nasdaq National Market and the
achievement of certain goals for 1998 earnings per share. Such grants, as a
result of applicable vesting arrangements, also serve as a means of retaining
these individuals. In making share option grants to executive officers, the
Compensation Committee considers a number of factors, including the performance
of the executive officer, the responsibilities of the executive, the salary and
bonus to be earned by the executive and the executive's current share or option
holdings.
During 1998, the Named Executive Officers received options under the 1995
Option Plan to purchase an aggregate of 395,000 Ordinary Shares, at a weighted
average exercise price of $32.72 per Ordinary Share; all current executive
officers as a group received options to purchase an aggregate of 720,000
Ordinary Shares, at a weighted average exercise price of $32.33 per share; and
all employees, excluding current executive officers as a group, received options
to purchase an aggregate of 1,774,005 Ordinary Shares, at a weighted average
exercise price of $37.73 per share. During 1997, non-employee Directors as a
group received options to purchase an aggregate of 135,000 Ordinary Shares, at a
weighted average exercise price of $38.00 per share, under the 1995 Option Plan.
For additional information regarding the ownership of options by the Named
Executive Officers, see "Executive Compensation--Option Grants" and "--Option
Exercises and Holdings." On March 23, 1999, the closing price of the Ordinary
Shares on the Nasdaq National Market was $13.00 and options to purchase an
aggregate of 7,546,659 shares were outstanding under the 1995 Option Plan.
Compensation of the Chief Executive Officer in Fiscal 1998
The philosophy applied by the Compensation Committee in establishing the
compensation for the Company's President, Chief Executive Officer and Chairman
is the same as for the other senior management of the Company--to provide a
competitive compensation opportunity that rewards performance.
Mr. John J. Boyle, III served in the positions of President, Chief
Executive Officer and Chairman of the Company during the year ended December 31,
1998. The Compensation Committee set Mr. Boyle's base salary during 1998 at
$350,000, considered by the Compensation Committee to be in the middle third of
the compensation of Chief Executive Officers at other publicly-traded companies
at the same stage of development as the Company. In addition, Mr. Boyle received
options to purchase 35,000 Ordinary Shares at an exercise price of $15.00 per
share and options to purchase 100,000 Ordinary Shares at an exercise price of
$38.325 during 1998, which amounts were partially based on achievement of
certain performance related goals that were established in 1998. In considering
Mr. Boyle's performance, the Compensation Committee considered the hiring of
certain key management level employees of the Company and the Company's
achievement of its internal earnings targets.
Compliance with United States Internal Revenue Code Section 162(m)
Section 162(m) of the United States Internal Revenue Code of 1986, as
amended (the "Code"), generally disallows a tax deduction to public companies
for compensation over $1,000,000 paid to the company's Chief Executive Officer
and four other most highly compensated executive officers. Qualifying
performance-based compensation will not be subject to the deduction limit if
certain requirements are met. Although the Company has no current plan to pay
any of its executive officers annual compensation over $1,000,000, it currently
intends to structure the performance-based portion of the compensation of its
executive officers in a manner that complies with Section 162(m) of the Code to
mitigate any disallowance of deductions.
COMPENSATION COMMITTEE
James B. Murray, Jr., Chairman
Brian E. Boyle
William F. Cunningham
<PAGE>
Share Ownership of Certain Beneficial Owners and Management
The following table sets forth the beneficial ownership of the Company's
Ordinary Shares as of March 23, 1999 (i) by each person who is known by the
Company to beneficially own more than 5% of the outstanding Ordinary Shares,
(ii) by each director or nominee for director, (iii) by each of the Named
Executives and (iv) by all current directors and executive officers as a group:
<TABLE>
Number of Shares
Beneficially Percentage of
Owned (1) Outstanding
Name and Address of Beneficial Owner Ordinary Shares(2)
<S> <C> <C>
T. Rowe Price Associates, Inc. (3) 5,018,900 12.8%
100 E. Pratt Street
Baltimore, MD 21202
Ardsley Advisory Partners and Philip J. Hempleman (4) 2,460,000 6.3%
646 Steamboat Road
Greenwich, CT 06836
T. Rowe Price Mid-Cap Growth Fund, Inc. (5) 2,275,000 5.8%
100 E. Pratt Street
Baltimore, MD 21202
Friess Associates, Inc. (6) 1,982,000 5.1%
115 E. Snow King
Jackson, WY 83001
Nueberger Berman, LLC (7) 1,943,800 5.0%
605 Third Avenue
New York, NY 10158-3698
Bruce A. Saville (8) 787,396 2.0%
John J. Boyle, III (9) 782,754 2.0%
James B. Murray, Jr. (10) 624,296 1.6%
David P. Mixer (11) 615,422 1.6%
John J. Kiley (12) 89,526 *
Andrew Campbell (13) 88,333 *
Marc J. Venator (14) 84,018 *
Brian E. Boyle (15) 79,012 *
John A. Blanchard, III (16) 76,612 *
John W. Sidgmore (17) 76,612 *
Lawrence S. Barker (18) 65,493 *
Fergus G. McGovern (19) 65,000 *
Richard A. Licursi (20) 55,812 *
William F. Cunningham (21) 35,000 *
All current directors and executive officers as a group 3,682,741 9.0%
(18 persons) (22)
</TABLE>
- --------
* Less than 1% of the Ordinary Shares outstanding.
(1) Each person has sole investment and voting power with respect to the shares
indicated, except as otherwise noted. The number of Ordinary Shares
beneficially owned by each director, nominee for director or executive
officer is determined under the rules of the SEC and the information is not
necessarily indicative of beneficial ownership for any other purpose. The
inclusion herein of any shares as beneficially owned does not constitute an
admission of beneficial ownership. Any reference in these footnotes to
shares subject to share options held by the person in question refers to
share options held by such person that are currently exercisable or
exercisable within 60 days after March 23, 1999 ("Presently Exercisable
Options").
(2) The number of shares deemed outstanding includes 39,112,486 shares
outstanding as of March 23, 1999 and any shares subject to share options
held by the person or entity in question that are Presently Exercisable
Options.
(3) Based solely on information contained in a Schedule 13G filed with the SEC
on February 11, 1999.
(4) Based solely on information contained in a Schedule 13G filed with the SEC
on February 16, 1999.
(5) Based solely on information contained in a Schedule 13G filed with the SEC
on February 11, 1999.
(6) Based solely on information contained in a Schedule 13G filed with the SEC
on January 25, 1999.
(7) Based solely on information contained in a Schedule 13G filed with the SEC
on February 10, 1999.
(8) All shares are owned of record by Grannarville Interest Group Inc. Mr.
Saville owns 100% of the voting securities of Granville Interest Group Inc.
Includes 86,978 shares issuable pursuant to Presently Exercisable Options.
(9) Includes 738,520 shares issuable pursuant to Presently Exercisable Options.
(10) Includes 50,712 held by The James B. and Bruce R. Murray, Jr. Foundation,
of which Mr. Murray is the sole trustee and which shares Mr. Murray
disclaims beneficial ownership, 200 shares held by Mr. Murray in trust for
James B. Murray III, 200 shares held by Mr. Murray in trust for Meghan R.
Murray, 197,200 shares held in the James B. Murray, Jr. Family Limited
Partnership, of which Mr. Murray is the sole general partner, and 35,000
shares issuable pursuant to Presently Exercisable Options.
(11) Includes 10,000 shares held by Trimix Foundation, of which Mr. Mixer is one
of three directors and which shares Mr. Mixer disclaims beneficial
ownership, 69,767 shares held by the David P. Mixer Grantor Retained
Annuity Trust No. 3, 23,256 shares held by the David P. Mixer Grantor
Retained Annuity Trust No. 1 and 35,000 shares issuable pursuant to
Presently Exercisable Options.
(12) Includes 86,667 shares issuable pursuant to Presently Exercisable Options.
(13) Consists solely of shares issuable pursuant to Presently Exercisable
Options.
(14) Includes 81,667 shares issuable pursuant to Presently Exercisable Options.
Mr. Venator ceased to be employed by the Company effective January 29,
1999.
(15) Includes 76,612 shares issuable pursuant to Presently Exercisable Options
40,000 of which are held by the Sheng Ren Trust which shares Mr. Boyle
disclaims beneficial ownership.
(16) Consists solely of shares issuable pursuant to Presently Exercisable
Options.
(17) Consists solely of shares issuable pursuant to Presently Exercisable
Options.
(18) Includes 65,000 shares issuable pursuant to Presently Exercisable Options.
(19) Consists solely of shares issuable pursuant to Presently Exercisable
Options.
(20) Includes 35,000 shares issuable pursuant to Presently Exercisable Options.
(21) Consists solely of shares issuable pursuant to Presently Exercisable
Options.
(22) Includes 1,729,334 shares issuable pursuant to Presently Exercisable
Options.
<PAGE>
COMPARATIVE STOCK PERFORMANCE
The following graph compares the cumulative total shareholder return on the
ADSs representing Ordinary Shares of the Company between November 16, 1995 (the
date on which the Company's ADSs first became publicly traded) and December 31,
1998 with the cumulative total return of (i) the Standard & Poor's 500 Stock
Index ("S&P 500") and (ii) the Standard & Poor's Software & Services Index ("S&P
Computers"). This graph assumes the investment of $100 on November 16, 1995 in
the ADSs representing Ordinary Shares, the Standard & Poor's 500 Stock Index and
the Standard & Poor's Software & Services Index, and assumes dividends are
reinvested. Measurement points are November 16, 1995, December 31, 1995,
December 31, 1996, December 31, 1997 and December 31, 1998.
[PERFORMANCE GRAPH APPEARS HERE]
<TABLE>
Saville Systems S&P 500 S&P Computers
<S> <C> <C> <C>
11/16/95 100 100 100
12/95 143 106 95
12/96 406 131 147
12/97 830 174 205
12/98 380 224 371
</TABLE>
<PAGE>
PROPOSAL III
AMENDMENT AND RESTATEMENT OF THE ARTICLES OF ASSOCIATION
Certain technical amendments to the Articles of Association will be
required in order to apply for a listing of the Company's Ordinary Shares on the
Irish Stock Exchange. The Company believes that maintaining the flexibility to
apply for a listing of the Company's Ordinary Shares on the Irish Stock Exchange
is in the best interest of the shareholders, as such a listing may provide more
liquidity to the Company's shareholders, increased visibility for the Company's
securities, greater access to additional capital markets and more flexibility to
perform certain corporate functions, such as engaging in market purchases of its
own shares. The special resolution set out in Exhibit A describes each specific
amendment and Exhibit C sets forth the proposed Articles of Association as
amended.
Board Recommendation
The Board of Directors recommends a vote FOR the special resolution set
out in Exhibit A amending the Company's Articles of Association as required in
order to apply for a listing of the Company's Ordinary Shares on the Irish Stock
Exchange.
PROPOSAL IV
AUTHORIZATION OF SHARE REPURCHASE
Under Irish Company law, market purchases by the Company of the
Company's own shares must be authorized by the Company in a general meeting and
at present may only be made on the Irish Stock Exchange. Shareholders are being
asked to grant the Company the authority, subject to the listing of the
Company's Ordinary Shares on the Irish Stock Exchange, to purchase up to
5,000,000 of the Company's Ordinary Shares and to reissue any such shares
purchased by it and not cancelled. The Board of Directors would only exercise
the power to purchase the Company's Ordinary Shares in its discretion and only
at price levels which it considered to be in the best interest of the
shareholders generally, after taking account of the Company's overall financial
position. The minimum price which may be paid by the Company for a purchase of
the Company's Ordinary Shares shall be the nominal value of the Ordinary Shares
and the maximum price which may be paid by the Company shall be an amount equal
to 105 percent of the average of the closing prices on Nasdaq of the Ordinary
Shares on each of the five (5) trading days immediately preceding the day on
which the Ordinary Shares are purchased.
Ordinary Shares which the Company has purchased and not cancelled may
be held as treasury shares and reissued by the Company. Treasury shares may be
reissued off-market to, among others, participants in the Company's 1995 Share
Option Plan (the "Option Plan") or the Company's 1996 Employee Share Purchase
Plan (the "Purchase Plan" and, together with the Option Plan, the "Plans"). The
minimum price at which any treasury shares may be reissued off-market, in the
case of reissue to such participants, shall be the issue price as provided for
in or pursuant to the Plans and in all other circumstances shall be an amount
equal to 90 percent of an amount equal to the average of the closing prices on
Nasdaq of the Ordinary Shares on each of the five (5) trading days immediately
preceding the day on which the Ordinary Shares are to be reissued (the "Relevant
Price"), and the maximum reissue price shall be 120 percent of the Relevant
Price. The authority conferred hereby shall expire at the close of business on
the earlier of the date of the Annual General Meeting held in 2000 or November
18, 2000, unless such authority has been previously varied, revoked or renewed
by the shareholders.
Board Recommendation
The Board of Directors recommends a vote FOR the special resolution set
forth in Exhibit B hereto, which resolution grants the Company the authority to
purchase its own shares and to reissue such shares purchased by it and not
cancelled.
PROPOSAL V
RATIFICATION OF SELECTION OF INDEPENDENT ACCOUNTANTS
Ernst & Young served as the Company's independent auditors from 1993 until
October 15, 1998. Ernst & Young resigned as the Company's independent auditors
because of the existence of certain mutual business opportunities on which Ernst
& Young and the Company desired to collaborate which affected Ernst & Young's
independence with respect to the Company. Effective October 22, 1998 the Company
engaged PricewaterhouseCoopers LLP as its principal accountants and independent
auditors to replace Ernst & Young. The Board of Directors acknowledges the
retirement of Ernst & Young as the Company's independent auditors in accordance
with the Companies Acts, 1963 to 1990, of the Republic of Ireland.
PricewaterhouseCoopers LLP has expressed their willingness to serve as the
Company's independent accountants for the current year.
Representatives of PricewaterhouseCoopers LLP are expected to be present at
the Annual General Meeting, will have the opportunity to make a statement if
they desire to do so and will also be available to respond to appropriate
questions from shareholders.
Board Recommendation
The Board of Directors recommends a vote FOR ratification of the
appointment of PricewaterhouseCoopers LLP as the Company's independent
accountants.
PROPOSAL VI
AUTHORIZATION OF DETERMINATION BY THE BOARD OF DIRECTORS
OF THE REMUNERATION OF INDEPENDENT ACCOUNTANTS
Under Irish Company law, the remuneration of the Company's independent
accountants must be determined by the shareholders of the Company or in such
manner as the shareholders may approve at the Annual General Meeting. The
Company has a standing Audit Committee of the Board of Directors, which reviews
the Company's independent accountants' performance in the annual audit, reviews
accountants' fees, discusses the Company's internal accounting control policies
and procedures and considers and recommends the selection of the Company's
independent accountants. The current Audit Committee members are Messrs.
Cunningham (Chairman), Licursi and Mixer. During 1998, the Audit Committee
determined the appropriate remuneration of the Company's independent accountants
based upon discussions with the accountants and a number of factors, including
the fees of other accounting firms of similar reputation, the quality of the
work of the accountants and the responsiveness of the accountants to the
requirements of the Company.
Board Recommendation
The Board of Directors believes that the Audit Committee is in the best
position to determine the remuneration of the Company's independent accountants
and that it is in the best interests of the Company for the Audit Committee to
make this determination. Therefore, the Board of Directors recommends a vote FOR
the proposal to authorize the Board of Directors, through the Audit Committee,
to determine the remuneration of the Company's independent accountants upon
consideration of factors deemed relevant by the Audit Committee, which may
include some or all of the factors described above.
<PAGE>
PROPOSAL VII
AUTHORIZATION OF LOCATION OF 2000 ANNUAL GENERAL MEETING
Under Irish company law, the 2000 Annual General Meeting of Shareholders of
the Company must be held in the Republic of Ireland, unless the shareholders of
the Company authorize the Company to hold such Annual General Meeting elsewhere.
To maintain maximum flexibility, the Board of Directors believes that it is in
the best interests of the Company for the shareholders to authorize the Company
to hold the 2000 Annual General Meeting in North America. Such authorization
will permit the Company to hold the 2000 Annual General Meeting in the Republic
of Ireland or in North America, as determined by the Board of Directors to be in
the best interests of the Company.
Board Recommendation
The Board of Directors believes that this flexibility is in the best
interests of the Company and recommends a vote FOR this proposal.
OTHER MATTERS
The Board of Directors does not know of any other matters that may come
before the Annual General Meeting. However, if any other matters are properly
presented to the Annual General Meeting, it is the intention of the Chairman of
the Annual General Meeting, as the person named in the accompanying proxy, to
vote, or otherwise act, in accordance with his judgment on such matters.
All costs of solicitation of proxies will be borne by the Company. In
addition to solicitations by mail, the Company's directors, officers and regular
employees, without additional remuneration, may solicit proxies by telephone,
telegraph and personal interviews, and the Company reserves the right to retain
outside agencies for the purpose of soliciting proxies. Brokers, custodians and
fiduciaries will be requested to forward proxy soliciting material to the owners
of shares held in their names, and the Company will reimburse them for their
out-of-pocket expenses in this connection. The Depositary is required pursuant
to the Deposit Agreement to mail to all Owners a notice indicating the voting
rights of such Owners with respect to their Ordinary Shares as more fully
described in this Proxy Statement.
<PAGE>
Deadline For Submission of Shareholder Proposals at the 2000 Annual General
Meeting
Proposals of shareholders intended to be included in the Company's proxy
statement for the 2000 Annual General Meeting of Shareholders must be received
by the Company at its principal office not later than December 23, 1999.
Shareholders who wish to make a proposal at the 2000 Annual General Meeting
- - other than one that will be included in the Company's proxy materials - must
notify the Company no later than March 7, 2000. If a shareholder who wishes to
present a proposal fails to notify the Company by this date, the proxies that
the Board of Directors solicits for the meeting will have discretionary
authority to vote on the shareholder's proposal if it is properly brought before
the meeting.
By Order of the Board of Directors,
Peter M. Quinlan, Secretary
April 21, 1999
THE BOARD OF DIRECTORS HOPES THAT SHAREHOLDERS WILL ATTEND THE ANNUAL
GENERAL MEETING. WHETHER OR NOT YOU PLAN TO ATTEND, YOU ARE URGED TO COMPLETE,
DATE, SIGN AND RETURN THE ENCLOSED PROXY IN THE ACCOMPANYING ENVELOPE. PROMPT
RESPONSE WILL GREATLY FACILITATE ARRANGEMENTS FOR THE ANNUAL GENERAL MEETING AND
YOUR COOPERATION WILL BE APPRECIATED. SHAREHOLDERS WHO ATTEND THE ANNUAL GENERAL
MEETING MAY VOTE THEIR SHARES PERSONALLY EVEN THOUGH THEY HAVE SENT IN THEIR
PROXIES.
<PAGE>
APPENDIX A
PROXY SAVILLE SYSTEMS PLC PROXY
Proxy for the Annual General Meeting of Shareholders
to be held on May 18, 1999
The undersigned, revoking all prior proxies, hereby appoint(s) the
Chairman of the Annual General Meeting as proxy to represent and vote, as
designated herein, all Ordinary Shares of Saville Systems PLC (the "Company")
which the undersigned would be entitled to vote if personally present at the
Annual General Meeting of Shareholders of the Company to be held at the Great
Southern Hotel, Shannon, Ireland, on May 18, 1999 at 10:00 a.m. local time, and
at any adjournment thereof.
This proxy when properly executed will be voted in the manner directed
by the undersigned shareholder(s). If no direction is given, this proxy will be
voted FOR Proposals 1, 2, 3, 4, 5, 6 and 7. Attendance of the undersigned at the
meeting or any adjournment thereof will not be deemed to revoke this proxy
unless the undersigned shall revoke this proxy in writing before it is exercised
or affirmatively indicate his intent to vote in person.
1. To consider the audited accounts of the Company for the year ended
December 31, 1998 and the Reports of the Directors and the Accountants thereon.
|_| FOR |_| AGAINST |_| ABSTAIN
2. To re-elect the following Class I Directors (except as marked
below):
William F. Cunningham, Fergus G. McGovern and David P. Mixer
|_| FOR all nominees
|_| WITHHOLD AUTHORITY to vote for all nominees
|_| FOR all nominees except the following:
<PAGE>
3. To authorize certain amendments to the Company's Articles of
Association required in order to apply for a listing of the Company's Ordinary
Shares on the Irish Stock Exchange.
|_| FOR |_| AGAINST |_| ABSTAIN
4. To authorize the Company, in the discretion of the Board of
Directors and subject to the listing of the Company's Ordinary Shares on the
Irish Stock Exchange, to purchase up to 5,000,000 of the Company's Ordinary
Shares and to reissue any such Ordinary Shares purchased by it and not
cancelled.
|_| FOR |_| AGAINST |_| ABSTAIN
5. To ratify the appointment of PricewaterhouseCoopers LLP as the
Company's independent accountants for the current fiscal year.
|_| FOR |_| AGAINST |_| ABSTAIN
6. To authorize the Directors to determine the remuneration of the
independent accountants.
|_| FOR |_| AGAINST |_| ABSTAIN
7. To authorize the holding of the 2000 Annual General Meeting of
Shareholders of the Company in North America.
|_| FOR |_| AGAINST |_| ABSTAIN
<PAGE>
Signature:
Date:
Signature:
Date:
Notes:
(a) A corporation may execute this proxy form under its common seal or by the
signature of a duly authorized officer.
(b) In the case of joint holders, any joint holder may execute this proxy form
but the vote of the senior who tenders a vote shall be accepted to the
exclusion of the votes of the other joint holders; and for this purpose
seniority shall be determined by the order in which the names stand in the
Register of Members in respect of the joint holding.
EXHIBIT A
PROPOSAL III
SPECIAL RESOLUTION
As a special resolution:
That the Articles of Association of the Company be altered as follows:
(a) in the case of Article 3, by the deletion of "(a)" at the commencement of
the first paragraph and the deletion of paragraph (b) in its entirety;
(b) by the substitution for paragraph (a) of Article 35 of the following new
paragraph (a):
"(a) The Directors in their absolute discretion and without assigning any
reason therefor may decline to register any transfer of a share which is
not fully paid, provided that the Directors shall not refuse to register
any transfer of partly paid shares which are listed or dealt in on any
regulated market of the Irish Stock Exchange Limited or of the London
Stock Exchange Limited on the grounds that they are partly paid shares in
circumstances where such refusal would prevent dealings in such shares
from taking place on an open and proper basis.";
(c) in the case of Article 66:
(i) by the insertion at the beginning of paragraph (a)(ii)(B) of the words
"where the Specified Event concerned is the event described in
subparagraph (i) or (iii) of paragraph (g)," and by the substitution
for the words "or a renunciation" in the same paragraph of the words
"or renunciation"; and
(ii)by the substitution for the words "to a bona fide unconnected third
party" in paragraph (b) of the words "at arm's length to an
unconnected third party" and by the substitution for the words
"beneficial owner, any transfer" in paragraph (h) of the words
"unconnected beneficial owner, any transfer of a share";
(d) by the substitution for paragraph (e) of Article 84 of the following new
paragraph (e):
"(e) A retiring Director who is re-elected shall remain allocated to the
Class to which he was allocated prior to his retirement. A person who is
elected a Director in place of a retiring Director or who is appointed a
Director by the members to fill a casual vacancy or in place of a Director
removed from office under Article 88 shall be allocated to the Class to
which the retiring Director, the vacating Director or, as the case may be,
the Director so removed had been allocated. Subject to Article 84(a), a
person who is appointed by the members as a Director under Article 73 or
as an additional Director under Article 86 shall be allocated to such
Class as the members may determine at the meeting at which he is appointed
or, failing such determination, as the Directors shall determine. A
Director who is appointed a Director by the Directors under any provisions
of these Articles shall be allocated by the Directors to a Class the
Directors in which will be required to retire from office at the next
following annual general meeting.";
(e) by the substitution for the words "six nor more than twenty Clear Days" in
paragraph (a) of Article 85 of the words "seven nor more than 42 days";
(f) by the substitution for paragraphs (a), (b) and (e) of Article 91 of the
following new paragraphs (a), (b) and (e) respectively:
"(a) Save as otherwise provided by the Articles, a Director shall not vote
at a meeting of the Directors or a committee of Directors on any
resolution concerning a matter in which he has an interest which (together
with any interest of any person connected with him within the meaning of
paragraph (e)) is to his knowledge material (otherwise than by virtue of
his interests in shares or debentures or other securities of, or otherwise
in or through, the Company) or a duty which conflicts or may conflict with
the interests of the Company. A Director shall not be counted in the
quorum present at a meeting in relation to any such resolution on which he
is not entitled to vote.
(b) A Director shall be entitled (in the absence of some other material
interest than is indicated below) to vote (and be counted in the quorum)
in respect of any resolution concerning any of the following matters,
namely:
(i) the giving of any security, guarantee or indemnity to him in
respect of money lent by him to the Company or any of its
subsidiaries or obligations incurred by him at the request of or
for the benefit of the Company or any of its subsidiaries;
(ii) the giving of any security, guarantee or indemnity to a third
party in respect of a debt or obligation of the Company or any of
its subsidiaries for which he himself has assumed responsibility
in whole or in part and whether alone or jointly with others
under a guarantee or indemnity or by the giving of security;
(iii)any proposal concerning any offer of shares or debentures or
other securities of or by the Company or any of its subsidiaries
for subscription, purchase or exchange in which offer he is or is
to be interested as a holder of securities or as a participant in
the underwriting or sub-underwriting thereof;
(iv) any proposal concerning any other company in which he (together
with any persons connected with him within the meaning of
paragraph (e)) does not to his knowledge have an interest (as
that term is used in Chapter 2 or Part IV of the 1990 Act) in one
per cent or more of either any class of the equity share capital
of, or the voting rights in, such company;
(v) any proposal relating to any arrangement for the benefit of
employees of the Company or any of its subsidiaries which does
not award him any privilege or benefit not generally awarded to
the employees to which such arrangement relates; or
(vi) the granting of any such indemnity, or the discharge of the cost
of any such insurance cover, as is referred to in Article 130."
"(e) For the purposes of this Article, section 26 of the 1990 Act
shall apply for the purposes of determining whether a person is
connected with a Director except that in paragraph (b)(iv) a
person who is a child (not being a minor child), parent, brother
or sister of a Director shall not by virtue only of that
relationship be deemed to be connected with the Director."; and
(g) by the deletion from paragraph (b) of Article 121 of the words "without
prejudice to the provision of these Articles allowing a meeting to be
convened by newspaper advertisement."
EXHIBIT B
PROPOSAL IV
SPECIAL RESOLUTION
That, subject to the Ordinary Shares having been admitted to the Official List
of the Irish Stock Exchange:
(1) the Company and its subsidiaries (being subsidiaries for the purposes of
Part XI of the 1990 Act) or any of them be and they are hereby generally
authorized to make market purchases (as defined in section 212 of the 1990
Act) of Ordinary Shares on such terms and conditions and in such manner as
the directors may from time to time determine but subject to the
provisions of the 1990 Act and to the following restrictions and
provisions:
(a) the maximum number of Ordinary Shares authorized to be acquired
pursuant to the terms of this resolution shall be 5,000,000;
(b) the minimum price that may be paid for any Ordinary Share shall be its
nominal value; and
(c) the maximum price that may be paid for any Ordinary Share shall be an
amount equal to 105 percent of the Relevant Price;
(2) pursuant to the authority conferred by paragraph (1) of this resolution,
for the purposes of section 209 of the 1990 Act, the re-issue price range
at which any treasury shares (as defined in that section 209) for the time
being held by the Company may be re-issued off-market shall be as follows:
(a) the minimum price at which a treasury share may be re-issued
off-market for the purposes of the Plans shall be the issue price as
provided for in or pursuant to such Plan and in all other
circumstances shall be an amount equal to 90 per cent of the Relevant
Price; and
(b) the maximum price at which a treasury share may be re-issued
off-market shall be an amount equal to 120 per cent of the Relevant
Price;
(3) the authorities hereby conferred shall expire at the close of business on
the day of the next annual general meeting of the Company or on November
18, 2000, whichever is earlier, unless, in the case of either authority,
such authority is previously varied, revoked or renewed; and
(4) for the purposes of this resolution the following expressions shall have
the following meanings:
(a) "ADS" means an American Depositary Share representing one Ordinary
Share;
(b) "Nasdaq" means the Nasdaq National Market;
(c) "Ordinary Share" means an ordinary share of the Company, $0.0025
nominal value per share;
(d) "Plans" means the Company's 1995 Share Option Plan and the Company's
1996 Employee Share Purchase Plan;
(e) "Relevant Price" means the average of the closing prices on Nasdaq of
an ADS for the five Trading Days immediately preceding the day (the
"Relevant Day") on which an Ordinary Share is purchased or, as the
case may be, reissued pursuant to this resolution, and such average
may, if so required for the purpose of the exercise of either of the
authorities hereby conferred, be expressed in any currency other than
U.S. dollars by reference to the relevant exchange rate quoted by the
Central Bank of Ireland, or any other bank in Dublin selected for the
purpose by the Company, at the close of business on the banking
business day immediately preceding the Relevant Day;
(f) "Trading Day" means a day on which trading has taken place on Nasdaq
in ADSs; and
(g) "1990 Act" means the Companies Act, 1990.
EXHIBIT C
COMPANIES ACTS, 1963 TO 1990
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
SAVILLE SYSTEMS PUBLIC LIMITED COMPANY
(as of May 18,1999 )
McCann FitzGerald
Solicitors
2 Harbourmaster Place
Custom House Dock
Dublin 1
<PAGE>
SAVILLE SYSTEMS PUBLIC LIMITED COMPANY
CONTENTS
Page
MEMORANDUM OF ASSOCIATION......................................................1
ARTICLES OF ASSOCIATION.......................................................10
PART I - PRELIMINARY........................................................10
1. Interpretation.......................................................10
PART II - SHARE CAPITAL AND RIGHTS..........................................12
2. Share capital........................................................12
3. Rights of shares on issue............................................14
4. Redeemable shares....................................................14
5. Variation of rights..................................................14
6. Trusts not recognised................................................15
7. Disclosure of interests..............................................16
8. Allotment of shares..................................................18
9. Payment of commission................................................18
10. Payment by instalments...............................................18
PART III - SHARE CERTIFICATES...............................................19
11. Issue of certificates................................................19
12. Balance and exchange certificates....................................19
13. Replacement of certificates..........................................19
PART IV - LIEN ON SHARES....................................................20
14. Extent of lien.......................................................20
15. Power of sale........................................................20
16. Power to effect transfer.............................................20
17. Proceeds of sale.....................................................20
PART V - CALLS ON SHARES AND FORFEITURE.....................................21
18. Making of calls......................................................21
19. Time of call.........................................................21
20. Liability of joint Holders...........................................21
21. Interest on calls....................................................21
22. Instalments treated as calls.........................................21
23. Power to differentiate...............................................22
24. Interest on moneys advanced..........................................22
25. Notice requiring payment.............................................22
26. Power of disposal....................................................23
27. Effect of forfeiture.................................................23
28. Statutory declaration................................................23
29. Non-payment of sums due on share issues..............................23
PART VI - CONVERSION OF SHARES INTO STOCK.....................................24
30. Conversion of shares into stock......................................24
31. Transfer of stock....................................................24
32. Rights of stockholders...............................................24
PART VII - TRANSFER OF SHARES...............................................24
33. Form of instrument of transfer.......................................24
34. Execution of instrument of transfer..................................25
35. Refusal to register transfers........................................25
36. Procedure on refusal.................................................25
37. Closing of transfer books............................................26
38. Absence of registration fees.........................................26
39. Retention of transfer instruments....................................26
40. Renunciation of allotment............................................26
PART VIII - TRANSMISSION OF SHARES..........................................26
41. Death of member......................................................26
42. Transmission on death or bankruptcy..................................26
43. Rights before registration...........................................27
PART IX - ALTERATION OF SHARE CAPITAL........................................27
44. Increase of capital..................................................27
45. Consolidation, sub-division and cancellation of capital..............27
46. Fractions on consolidation...........................................28
47. Reduction of capital.................................................28
48. Purchase of shares...................................................28
PART X - GENERAL MEETINGS...................................................29
49. Annual general meetings..............................................29
50. Extraordinary general meetings.......................................29
51. Convening general meetings...........................................29
52. Notice of general meetings...........................................29
PART XI - PROCEEDINGS AT GENERAL MEETINGS...................................30
53. Quorum for general meetings..........................................30
54. Special business.....................................................31
55. Chairman of general meetings.........................................31
56. Directors' and Auditors' right to attend general meetings............31
57. Adjournment of general meetings......................................32
58. Determination of resolutions.........................................32
59. Entitlement to demand poll...........................................32
60. Taking of a poll.....................................................33
61. Votes of members.....................................................33
62. Chairman's casting vote..............................................34
63. Voting by joint Holders..............................................34
64. Voting by incapacitated Holders......................................34
65. Default in payment of calls..........................................34
66. Restriction of voting and other rights...............................34
67. Time for objection to voting.........................................37
68. Appointment of proxy.................................................37
69. Bodies corporate acting by representatives at meetings...............38
70. Deposit and effect of proxy instruments..............................38
71. Effect of revocation of proxy or of authorisation....................39
72. Members resolutions in writing.......................................39
PART XII - DIRECTORS..........................................................40
73. Number of Directors..................................................40
74. Share qualification..................................................40
75. Ordinary remuneration of Directors...................................40
76. Special remuneration of Directors....................................40
77. Expenses of Directors................................................40
PART XIII - POWERS OF DIRECTORS.............................................41
78. Directors' powers....................................................41
79. Power to delegate....................................................41
80. Appointment of attorneys.............................................41
81. Local management.....................................................42
82. Borrowing powers.....................................................42
83. Execution of negotiable instruments..................................42
PART XIV - APPOINTMENT AND RETIREMENT OF DIRECTORS..........................42
84. Classes of Directors.................................................42
85. Eligibility for appointment..........................................44
86. Appointment of additional Directors..................................44
PART XV - DISQUALIFICATION AND REMOVAL OFDIRECTORS............................45
87. Disqualification of Directors........................................45
88. Removal of Directors.................................................45
PART XVI - DIRECTORS' OFFICES AND INTERESTS.................................46
89. Executive offices....................................................46
90. Directors' interests.................................................46
91. Restriction on Directors' voting.....................................48
92. Entitlement to grant pensions........................................50
PART XVII - PROCEEDINGS OF DIRECTORS........................................50
93. Convening and regulation of Directors' meetings......................50
94. Quorum for Directors' meetings.......................................51
95. Voting at Directors' meetings........................................51
96. Telecommunication meetings...........................................51
97. Chairman of board of Directors.......................................51
98. Validity of acts of Directors........................................51
99. Directors' resolutions or other documents in writing.................52
PART XVIII - THE SECRETARY..................................................52
100. Appointment of Secretary.............................................52
PART XIX - THE SEAL.........................................................52
101. Use of Seal..........................................................52
102. Seal for use abroad..................................................52
103. Signature of sealed instruments......................................53
PART XX - DIVIDENDS AND RESERVES............................................53
104. Declaration of dividends.............................................53
105. Interim and fixed dividends..........................................53
106. Payment of dividends.................................................54
107. Deductions from dividends............................................54
108. Dividends in specie..................................................54
109. Method of payment of dividends.......................................54
110. Dividends not to bear interest.......................................55
111. Payment to Holders on a particular date..............................55
112. Unclaimed dividends..................................................56
113. Reserves.............................................................56
PART XXI - ACCOUNTS...........................................................56
114. Accounts.............................................................56
PART XXII - CAPITALISATION OF PROFITS OR RESERVES...........................57
115. Capitalisation of distributable profits and reserves.................57
116. Capitalisation of non-distributable profits and reserves.............58
117. Implementation of capitalisation issues..............................58
PART XXIII - NOTICES........................................................59
118. Notices in writing...................................................59
119. Service of notices...................................................59
120. Service on joint Holders.............................................59
121. Service on transfer or transmission of shares........................60
122. Signature to notices.................................................60
123. Deemed receipt of notices............................................60
PART XXIV - WINDING UP......................................................60
124. Distribution on winding up...........................................60
125. Distribution in specie...............................................61
PART XXV - MISCELLANEOUS....................................................61
126. Minutes of meetings..................................................61
127. Inspection and secrecy...............................................62
128. Destruction of records...............................................62
129. Untraced shareholders................................................63
130. Indemnity............................................................64
<PAGE>
COMPANIES ACTS, 1963 to 1990
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
-of-
SAVILLE SYSTEMS PUBLIC LIMITED COMPANY
(as of May 18, 1999)
1. The name of the Company is "SAVILLE SYSTEMS PUBLIC LIMITED COMPANY".
2. The Company is to be a public limited company.
3. The objects for which the Company is established are:
(a) To purchase, sell, supply and deal in computer hardware, electronic
equipment, computer software, computer programmes and other articles
peripheral thereto and to act as agents, consultants, advisors,
instructors, trainers and technicians in relation to computer hardware,
electronic equipment, computer software, computer programmes and other
articles peripheral thereto.
(b) To design, modify, develop, manufacture, assemble and deal in computer
hardware, electronic equipment, computer software, computer programmes and
other articles peripheral thereto.
(c) To provide a technical and advisory service for users and potential users
of computer hardware, electronic equipment, computer software, computer
programmes and other articles peripheral thereto and to devise and supply
programmes and other software for such users.
(d) To carry on business and to act as merchants, financiers, investors (in
properties or securities) traders, shipowners, carriers, agents, brokers,
commission agents, concessionaries, distributors, importers, consultants or
exporters or in any other capacity in Ireland or in any other part of the
world and whether alone or jointly with others.
(e) To import, export, buy, sell, barter, exchange, pledge, make advance on,
take on lease or hire or otherwise acquire, alter, treat, work,
manufacture, process, dispose of, let on lease, hire or hire purchase, or
otherwise deal in and turn to account as may seem desirable goods,
articles, equipment, machinery, plant, merchandise and wares of any
description.
(f) To carry on all of the said businesses or any one or more of them as a
distinct or separate business or as the principal business of the Company,
to carry on any other business manufacturing or otherwise which may seem to
the Company capable of being conveniently carried on in connection with the
above or any one of the above or calculated directly or indirectly to
enhance the value of or render more profitable any of the Company's
property or rights.
(g) To carry on the business of financing and refinancing whether asset based
or not including, without limitation, financing and refinancing of
financial assets, with or without security and in whatever currency
including, without limitation, financing or refinancing by way of loan,
acceptance credits, commercial paper, bonds, promissory notes, bank
placements, leasing, hire-purchase, bailment, purchase and sale,
conditional sale, credit sale, assignment, novation, factoring,
discounting, securitisation, unitisation, participation, sub-participation,
or by any other means whatsoever.
(h) To purchase, acquire by any means, hold and trade, deal and participate in,
underwrite and sell or dispose of by any means securities and financial
instruments of all kinds including, without limitation, foreign currencies,
shares, stock, gilts, equities, bonds, promissory notes, debentures,
debenture stock, bonds, notes, commercial paper, risk management
instruments, money market deposits, swaps, interest rate hedges, foreign
currency hedges, floors, collars and such other financial instruments and
securities as are similar to, or are derivatives of, any of the foregoing.
(i) As an object of the Company and as a pursuit in itself or otherwise, and
whether for the purpose of making a profit or avoiding a loss or for any
other purpose whatsoever, to engage in currency and interest rate
transactions and any other financial or other transactions of whatever
nature, including any transaction for the purpose of, or capable of being
for the purposes of, avoiding, reducing, minimising, hedging against or
otherwise managing the risk of any loss, cost, expense or liability
arising, or which may arise, directly or indirectly, from a change or
changes in any interest rate or currency exchange rate or in the price or
value of any property, asset, commodity, index or liability or from any
other risk or factor affecting the Company's business, including but not
limited to dealings, whether involving purchases, sales or otherwise in
foreign (and Irish) currency, spot and forward exchange rate contracts,
forward rate agreements, caps, floors and collars, futures, options, swaps,
and any other currency interest rate and other hedging arrangements and
such other instruments as are similar to, or derivatives of, any of the
foregoing.
(j) To carry out any transactions or operations whatsoever which may be
lawfully undertaken and carried out by capitalists, promoters, merchants,
underwriters, financiers, or concessionaires and to carry on a general
financial business and general financial operations of all kinds in any
part of the world and to undertake or aid in any enterprise; to undertake
and execute any trusts the undertaking whereof may seem desirable and also
to undertake the office of administrator, treasurer or registrar and to
keep for any company, government, authority or body, any register relating
to any stocks, funds, shares or securities or to undertake any duties in
relation to the registration of transfers, and the issue of certificates.
(k) To take part in the formation, management, supervision or control of the
business or operations of any company or undertaking, and for that purpose
to appoint and remunerate any directors, accountants or other experts and
agents, to transact or carry on all kinds of agency business and in
particular in relation to the investment of money sale of property and the
collection and receipt of money.
(l) To establish, regulate and discontinue franchises and agencies, and to
undertake and transact all kinds of agency and franchise business which an
ordinary individual may legally undertake.
(m) To invest the capital and other monies of the Company in the purchase or
upon the security of shares, stocks, debentures, debenture stock, bonds,
bills, mortgages, obligations and securities of any kind issued or
guaranteed by any company, corporation or undertaking of whatever nature
and wheresoever constituted or carrying on business and in the purchase or
upon the security of shares, stocks, debentures, debenture stock, bonds,
bills, mortgages, obligations, and securities of any kind issued or
guaranteed by any government, state, dominion, colony, sovereign, ruler,
commissioners, trust, public, municipal, local or other authority or body
of whatsoever nature wheresoever situated.
(n) To acquire any such shares, stocks, debentures, debenture stock, bonds,
bills, mortgages, obligations and securities by subscription, syndicate
participation, tender, purchase, exchange or otherwise, and to subscribe
for the same, either conditionally or otherwise, and to guarantee the
subscription thereof and to exercise and enforce all rights and powers
conferred by or incident to the ownership thereof.
(o) To sell, realise, vary and transpose any investments or other property for
the time being of the Company as may be deemed expedient.
(p) To buy, acquire, sell, manufacture, repair, convert, alter, take on hire,
let on hire and deal in machinery, plant, works, implements, tools, rolling
stock, goods, and things of any description.
(q) To act as managers, consultants, supervisors and agents of other companies
or undertakings and to provide for such companies or undertakings,
managerial, advisory, technical, purchasing, selling and other services;
and to enter into such agreements as are necessary or advisable in
connection with the foregoing.
(r) To establish or promote or concur in establishing or promoting any company
or companies for the purposes of acquiring all or any of the property,
rights and liabilities of the Company or for any other purpose which may
seem directly or indirectly calculated to benefit the Company and to place
or guarantee the placing of, underwrite, subscribe for or otherwise acquire
all or any part of the shares, debentures or other securities of any such
other company.
(s) To adopt such means of making known the products of the Company as may seem
expedient, and in particular by advertising in the press, by circulars, by
purchase and exhibition or works of art or interest, by publication of
books and periodicals and by granting prizes, rewards and donations.
(t) To pay all costs, charges and expenses incurred or sustained in or about
the promotion and establishment of the Company, or which the Company shall
consider to be preliminary thereto.
(u) To develop and turn to account any land acquired by the Company or in which
it is interested and in particular by laying out and preparing the same for
building purposes, constructing, altering, pulling down, decorating,
maintaining, fitting up and improving buildings and conveniences, and by
planting, paving, draining, farming, cultivating, letting on building lease
or building agreement and by advancing money to and entering into contracts
and arrangements of all kinds with builders, tenants and others.
(v) To acquire and undertake the whole or any part of the business, property,
goodwill and assets of any person, firm or company carrying on or proposing
to carry on any of the businesses which the Company is authorised to carry
on, or which can be conveniently carried on in connection with the same, or
may seem calculated directly or indirectly to benefit the Company.
(w) To employ the funds of the Company in the development and expansion of the
business of the Company and all or any of its subsidiary or associated
companies and in any other company whether now existing or hereafter to be
formed and engaged in any like business of the Company or any of its
subsidiary or associated companies or of any other industry ancillary
thereto or which can conveniently be carried on in connection therewith.
(x) To sell, improve, manage, develop, exchange, lease, mortgage, enfranchise,
dispose of, turn to account or otherwise deal with all or any part of the
property, undertaking, rights or assets of the Company and for such
consideration as the Company might think fit. Generally to purchase, take
on lease or in exchange or otherwise acquire any real and personal property
and rights or privileges.
(y) To undertake and carry on all kinds of trust and agency business and to act
as managers of any syndicate.
(z) To employ experts to investigate and examine into the conditions,
prospects, value, character and circumstances of any business concerns and
undertakings, and generally of any assets, property or rights.
(aa) To purchase, take on lease or in exchange, or otherwise acquire and hold
for investment any estate or interest in any lands, buildings, easements,
rights, privileges, concessions, grants, patents, trade marks and any real
and personal property of any kind.
(bb) To borrow and raise money and to secure or discharge in any manner any debt
or obligation of any kind of or binding on the Company and in particular
but without limitation by mortgages of or charges upon all or any part of
the undertaking, property and assets (present and future) and the uncalled
capital of the Company or by the creation and issue on such terms and
conditions as may be thought expedient of debentures, debenture stock or
other securities of any description.
(cc) To draw, make, accept, endorse, discount, negotiate, execute and issue and
to buy, sell and deal with bills of exchange, promissory notes and other
negotiable or transferable instruments. Provided always that nothing herein
contained shall empower the Company to act as stock and share brokers or
dealers.
(dd) To amalgamate or enter into partnership or any joint purpose or
profit-sharing arrangement with and to co-operate in any way with or assist
or subsidise any company, firm or person, and to purchase or otherwise
acquire and undertake all or any part of the business, property and
liabilities of any person, body or company carrying on any business which
this Company is authorised to carry on or possessed of any investments or
other property suitable for the purposes of the Company.
(ee) To lend money and grant or provide credit and financial accommodation to
any company firm or person either with or without security and upon such
terms as may seem expedient.
(ff) To enter into any guarantee or contract of indemnity or suretyship and in
particular (without limitation) to guarantee, support or secure, with or
without consideration, whether by personal obligation or by mortgaging or
charging all or any part of the undertaking, property and assets (present
and future) and uncalled capital of the Company or by both such methods or
in any other manner, the performance of any obligations or commitments of,
and the repayment or payment of the principal amounts of and any premiums,
interest, dividends and other moneys payable on or in respect of any
securities or liabilities of any person, firm or company.
(gg) To accept stock or shares in, or the debentures, mortgages or other
securities of any other company in payment or part payment for any services
rendered, or for any sale made to, or debt owing from any such company,
whether such shares shall be wholly or only partly paid up, and to hold and
retain or re-issue with or without guarantee, or sell, mortgage or deal
with any stock, shares, debentures, mortgages or other securities so
received, and to give by way of consideration for any of the acts and
things aforesaid, or property acquired, any stock, shares, debentures,
mortgages or other securities of this or any other company.
(hh) To procure the registration or incorporation of the Company in or under the
laws of any place outside the State.
(ii) To amalgamate with any other company.
(jj) To apply for, purchase or otherwise acquire any patents, brevets
d'invention, licences, trade marks, technology and know-how and the like
conferring any exclusive or non-exclusive or limited right to use or any
secret or other information as to any invention or technology which may
seem capable of being used, for any of the purposes of the Company or the
acquisition of which may seem calculated directly or indirectly to benefit
the Company, and to use, exercise, develop or grant licences in respect of
or otherwise turn to account the property rights or information so
acquired.
(kk) To subscribe or guarantee money for any national, charitable, benevolent,
public, general or useful object or for any exhibition, or for any purpose
which may be considered likely directly or indirectly to further the
objects of the Company or the interests of its members.
(ll) To make such provision for the education and training of employees and
prospective employees of the Company and others as may seem to the Company
to be advantageous to or calculated, whether directly or indirectly, to
advance the interests of the Company or any member thereof.
(mm) To grant pensions or gratuities to any employees or ex-employees and to
officers and ex-officers (including directors and ex-directors) of the
Company or its predecessors in business, or the relations, connections, or
dependants of any such persons, and to establish or support associations,
institutions, clubs, funds and trusts which may be considered calculated to
benefit any such persons or otherwise advance the interests of the Company
or of its members.
(nn) To remunerate by cash payment or allotment of shares or securities of the
Company credited as fully paid-up or otherwise, any person or company for
services rendered or to be rendered to the Company, whether in the conduct
or management of its business, or in placing or assisting to place or
guaranteeing the placing of any of the shares of the Company's capital or
any debentures or other securities of the Company, or in or about the
formation or promotion of the Company.
(oo) To provide for the welfare of persons in the employment of, or holding
office under, or formerly in the employment of, or holding office under the
Company, or its predecessors in business, or any directors or ex-directors
of the Company, and the wives, widows and families, dependants or
connections of such persons, by grants of money, pensions or other
payments, and by forming and contributing to pension, provident or benefit
funds or profit sharing or co-partnership schemes for the benefit of any
such persons, and by providing or subscribing towards places of instruction
and recreation, and hospitals, dispensaries, medical and other attendances,
and other assistance, as the Company shall think fit, and to form,
subscribe to or otherwise aid, charitable, benevolent, religious,
scientific, national, or other institutions, exhibitions or objects, which
shall have any moral or other claims to support or aid by the Company by
reason of the locality of its operations or otherwise.
(pp) To do all or any of the things and matters aforesaid in any part of the
world, and either as principals, agents, contractors, trustees or
otherwise, and by or through trustees, agents or otherwise, and either
alone or in conjunction with others.
(qq) To obtain any Ministerial order or licence or any provisional order or Act
of the Oireachtas or Charter for enabling the Company to carry any of its
objects into effect, or for effecting any modification of the Company's
constitution, or for any other purpose which may seem expedient, and to
oppose any proceedings or applications which may seem calculated directly
or indirectly to prejudice the Company's interests.
(rr) To enter into any arrangement with any government or local or other
authority that may seem conducive to the Company's objects or any of them,
and to obtain from any such government, or authority, any rights,
privileges and concessions which the Company may think it desirable to
obtain, and to carry out, and to exercise and comply with the same.
(ss) To distribute in specie or otherwise as may be resolved, any assets of the
Company among its members, and particularly the shares, debentures or other
securities of any other company formed to take over the whole or any part
of the assets or liabilities of this Company.
(tt) To do all such other things as may be considered to be incidental or
conducive to the above objects or any of them.
And it is hereby declared that the objects of the Company as specified in each
of the foregoing paragraphs of this Clause (except only if and so far as
otherwise expressly provided in any paragraph) shall be separate and distinct
objects of the Company and shall not be in anywise limited by reference to any
other paragraph or the order in which the same occur or the name of the Company
nor shall any express statement in any object that it is an object of the
Company be taken to mean or imply that any object not expressly stated to be
such is not an object of the Company.
4. The liability of the members is limited.
5. The share capital of the Company is US$187,500 and IR(pound)30,000 divided
into 75,000,000 shares of US$0.0025 each and 30,000 shares of IR(pound)1
each.
We, the several persons whose names, and addresses are subscribed, wish to be
formed into a Company in pursuance of this Memorandum of Association, and we
agree to take the number of shares in the capital of the Company set opposite
our respective names.
<TABLE>
Names, Addresses and Descriptions Number of
of Subscribers Shares taken
by each Subscriber.
<S> <C>
Robert Burke One
33 Brook Court
Monkstown
Co Dublin
Solicitor
Olivia McCann One
Wakefield House
York Road
Dun Laoghaire
Co Dublin
Solicitor
Total Shares taken: Two
</TABLE>
Dated the 14th day of June 1993.
Witness to the above signatures:- Liam Carney
Solicitor
2 Harbourmaster Place
Custom House Dock
Dublin 1
<PAGE>
COMPANIES ACTS, 1963 TO 1990
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
SAVILLE SYSTEMS PUBLIC LIMITED COMPANY
(as of May 18, 1999)
PART I - PRELIMINARY
1. Interpretation.
2.
(a) In these Articles:
"the Acts" means the Companies Acts, 1963 to 1990;
"the 1963 Act" means the Companies Act, 1963;
"the 1983 Act" means the Companies (Amendment) Act, 1983;
"the 1990 Act" means the Companies Act, 1990;
"these Articles" means these articles of association as altered from time to
time;
"the Auditors" means the auditors for the time being of the Company;
"the Company" means the company (Registration number 204196) whose name appears
in the heading to these Articles;
"Clear Days" means in relation to the period of a notice, that period excluding
the day when the notice is given or deemed to be given and the day for which it
is given or on which it is to take effect;
"the Directors" means the directors for the time being of the Company or any of
them acting as the board of directors of the Company;
"the Holder" means, in relation to any share, the member whose name is entered
in the Register as the holder of the share;
"the Office" means the registered office for the time being of the Company;
"the Register" means the register of members to be kept as required by the Acts;
"the Seal" means the common seal of the Company or (where relevant) the official
securities seal kept by the Company pursuant to the Acts;
"the Secretary" means the secretary of the Company and any person appointed to
perform the duties of the Secretary of the Company;
"the State" means the Republic of Ireland;
"Stock Exchange Nominee" bears the meaning given to such expression by section 1
of the Companies (Amendment) Act, 1977;
"warrant to subscribe" means a warrant or certificate or similar document
indicating the right of the registered holder thereof (other than under a share
option scheme for employees) to subscribe for shares in the Company.
(b) Expressions in these Articles referring to writing shall be construed,
unless the contrary intention appears, as including references to printing,
lithography, photography and any other modes of representing or reproducing
words in a visible form. Expressions in these Articles referring to
execution of any document shall include any mode of execution whether under
seal or under hand.
(c) Unless specifically defined herein or the context otherwise requires, words
or expressions contained in these Articles shall bear the same meaning as
in the Acts but excluding any statutory modification thereof not in force
when these Articles become binding on the Company.
(d) The headings and captions included in these Articles are inserted for
convenience of reference only and shall not be considered a part of or
affect the construction or interpretation of these Articles.
(e) References in these Articles to any enactment or any section or provision
thereof shall mean such enactment, section or provision as the same may be
amended from time to time and be for the time being in force.
(f) In these Articles the masculine gender shall include the feminine and
neuter, and vice versa, and the singular number shall include the plural,
and vice versa, and words importing persons shall include firms or
companies.
(g) Unless the contrary intention appears, any reference to an Article shall be
construed as a reference to an Article of these Articles and any reference
in an Article to a paragraph or sub-paragraph shall be construed as a
reference to a paragraph of the Article or (as the case may be) a
sub-paragraph of the paragraph in which the reference is contained.
(h) References in these Articles to pounds or pence or "IR(pound)" or "p" shall
mean the currency, for the time being, of the Republic of Ireland.
(i) The regulations contained in Table A in the First Schedule to the 1963 Act
shall not apply to the Company.
<PAGE>
PART II - SHARE CAPITAL AND RIGHTS
2. Share capital.
(A) The capital of the Company is US$187,500 and IR(pound)30,000 divided into
75,000,000 Ordinary Shares of US$0.0025 each and 30,000 Deferred Shares of
IR(pound)1 each;
(B) The rights attached to the Deferred Shares shall be as follows:
(i) on a repayment of capital in a liquidation the Holders of Deferred
Shares shall be entitled, after the repayment to the Holders of
Ordinary Shares of the amount paid up thereon together with, in the
case of each of such Holders, an additional sum of US$100,000 for
every US$0.000025 paid up on each Ordinary Share held by such Holder,
to repayment of the amount paid up on each Deferred Share held by such
Holder but shall not be entitled to participate in any surplus
remaining after such payment, which surplus shall belong to the
Holders of Ordinary Shares according to the amounts paid up thereon;
(ii) save as aforesaid, the Holders of the Irish Pound Deferred Shares
shall not be entitled to any dividend or other distribution of any
kind;
(iii)the Irish Pound Deferred Shares shall not entitle the Holders thereof
to receive notice of or to attend or vote at general meetings of the
Company.
(C)
(i) The Company may at any time or times acquire all or any of the fully
paid Deferred Shares otherwise than for valuable consideration in
accordance with Section 41(2) of the 1983 Act and without the sanction
of the Holders thereof. If at any time the Company determines to
acquire less than all of the Deferred Shares in issue at such time, it
shall acquire from each Holder of such Deferred Shares the same
proportion of his holding thereof (as nearly as may be without
creating fractions) as the proportion which by the total number of
such shares proposed to be acquired by the Company bears to the total
number thereof in issue. In order to acquire Deferred Shares as
aforesaid the Company shall give written notice to each Holder of
Deferred Shares specifying the number of Deferred Shares which the
Company proposes to acquire from him and the date (the "Acquisition
Date") on which such acquisition is to take effect, and such
acquisition shall take effect on the date so specified. If so required
by the Company, each Holder of Deferred Shares shall, if he has not
already done so, deposit with the Secretary at the Office by such date
as the Company shall specify the certificate(s) representing the
Deferred Shares acquired or to be acquired from him or, if such
certificate had been lost or destroyed, produce to the Company
satisfactory evidence as to such loss or destruction and an indemnity
in respect thereof in a form satisfactory to the Directors. If
appropriate, the Company shall despatch certificates for any balance
of the Deferred Shares represented by the certificates deposited with
the Secretary as aforesaid but not acquired by the Company. For the
purpose of any such acquisition, the Company shall be deemed to have
irrevocable authority from each Holder of Deferred Shares to appoint
any person to execute on behalf of such Holder at any time on or after
the Acquisition Date a transfer of any Deferred Shares acquired by the
Company from such Holder to the Company or such other person as the
Company may nominate. In accordance with subsection (3) of Section 43
of the 1983 Act, the Company shall, not later than three years after
any acquisition by it of any Deferred Shares as aforesaid, cancel such
shares (except those which it shall have previously disposed of or
those in which the Company shall have previously disposed of an
interest) and reduce the amount of the share capital by the nominal
value of the shares so cancelled, and the Directors may take such
steps as are requisite to enable the Company to carry out its
obligations under that subsection without complying with Sections 72
and 73 of the 1963 Act.
(ii) Neither the acquisition by the Company otherwise than for valuable
consideration of all or any of the Deferred Shares nor the
cancellation thereof by the Company in accordance with paragraph
2(C)(i) of this Article shall constitute a variation or abrogation of
the rights or privileges attached to the Deferred Shares, and
accordingly the Deferred Shares or any of them may be so acquired and
cancelled without any such consent or sanction on the part of the
Holders thereof as is referred to in Article 5.
3. Rights of shares on issue.
Without prejudice to any special rights conferred on the Holders of any existing
shares or class of shares and subject to the provisions of the Acts, any share
may be issued with such rights or restrictions as the Company may by ordinary
resolution determine.
4. Redeemable shares.
Subject to the provisions of the Acts, any shares may be issued on the terms
that they are, or are liable at the option of the Company or the Holder, to be
redeemed on such terms and in such manner as may be provided by these Articles.
Subject as aforesaid, the Company may cancel any shares so redeemed or may hold
them as treasury shares and re-issue any such treasury shares as shares of any
class or classes or cancel them.
5. Variation of rights.
(a) Whenever the share capital is divided into different classes of shares, the
rights attached to any class may be varied or abrogated with the consent in
writing of the Holders of three-fourths in nominal value of the issued
shares of that class, or with the sanction of a special resolution passed
at a separate general meeting of the Holders of the shares of the class,
and may be so varied or abrogated either whilst the Company is a going
concern or during or in contemplation of a winding-up. The quorum at any
such separate general meeting, other than an adjourned meeting, shall be
two persons holding or representing by proxy at least one-third in nominal
value of the issued shares of the class in question and the quorum at an
adjourned meeting shall be one person holding shares of the class in
question or his proxy.
(b) The rights conferred on Holders of Deferred Shares shall not be deemed to
be varied or abrogated by the creation or issue of further shares ranking
in priority to such shares or by the alteration of the rights attaching to
any other class of shares of the Company. In addition, neither the passing
by the Company of any special resolution for the cancellation of all or any
of the Deferred Shares for no consideration by means of a reduction of
capital requiring the confirmation of the Court nor the obtaining by the
Company nor the making by the Court of an order confirming any such
reduction of capital nor the making effective of such an order shall
constitute a variation or abrogation of the rights attaching to the
Deferred Shares, and, accordingly, the Deferred Shares may at any time be
cancelled for no consideration by means of a reduction of capital effected
in accordance with the Acts without any such sanction on the part of the
Holders of the Deferred Shares as is referred to in paragraph (a).
(c) The rights conferred upon the Holders of the shares of any class issued
with preferred or other rights shall not, unless otherwise expressly
provided by these Articles or the terms of the issue of the shares of that
class, be deemed to be varied by the creation or issue of further shares
ranking pari passu therewith or subordinate thereto.
6. Trusts not recognised.
Except as required by law, no person shall be recognised by the Company as
holding any share upon any trust, and the Company shall not be bound by or be
compelled in any way to recognise (even when having notice thereof) any
equitable, contingent, future or partial interest in any share or any interest
in any fractional part of a share or (except only as by these Articles or by law
otherwise provided) any other rights in respect of any share except an absolute
right to the entirety thereof in the Holder: this shall not preclude the Company
from requiring the members or a transferee of shares to furnish the Company with
information as to the beneficial ownership of any share when such information is
reasonably required by the Company.
7. Disclosure of interests.
(a) Notwithstanding the provisions of the immediately preceding Article, the
Directors, at any time and from time to time if, in their absolute
discretion, they consider it to be in the interests of the Company to do
so, may give a notice to the Holder or Holders of any share (or any of
them) requiring such Holder or Holders to notify the Company in writing
within such period as may be specified in such notice (which shall not be
less than twenty-eight days from the date of service of such notice) of
full and accurate particulars of all or any of the following matters,
namely:-
(i) his interest in such share;
(ii) if his interest in the share does not consist of the entire beneficial
interest in it, the interests of all persons having any beneficial
interest in the share (provided that one joint Holder of a share shall
not be obliged to give particulars of interests of persons in the
share which arise only through another joint Holder); and
(iii)any arrangements (whether legally binding or not) entered into by him
or any person having any beneficial interest in the share whereby it
has been agreed or undertaken or the Holder of such share can be
required to transfer the share or any interest therein to any person
(other than a joint Holder of the share) or to act in relation to any
meeting of the Company or of any class of shares of the Company in a
particular way or in accordance with the wishes or directions of any
other person (other than a person who is a joint Holder of such
share).
(b) If, pursuant to any notice given under paragraph (a), the person stated to
own any beneficial interest in a share or the person in favour of whom any
Holder (or other person having any beneficial interest in the share) has
entered into any arrangements referred to in sub-paragraph (a) (iii), is a
body corporate, trust, society or any other legal entity or association of
individuals and/or entities, the Directors, at any time and from time to
time if, in their absolute discretion, they consider it to be in the best
interests of the Company to do so, may give a notice to the Holder or
Holders of such share (or any of them) requiring such Holder or Holders to
notify the Company in writing within such period as may be specified in
such notice (which shall not be less than twenty-eight days from the date
of service of such notice) of full and accurate particulars of the names
and addresses of the individuals who control (whether directly or
indirectly and through any number of vehicles, entities or arrangements)
the beneficial ownership of all the shares, interests, units or other
measure of ownership of such body corporate, trust, society or other entity
or association wherever the same shall be incorporated, registered or
domiciled or wherever such individuals shall reside provided that if at any
stage of such chain of ownership the beneficial interest in any share shall
be established to the satisfaction of the Directors to be in the ownership
of any body corporate any of whose share capital is listed or dealt in or
quoted on any bona fide stock exchange, unlisted securities market or
over-the-counter securities market, it shall not be necessary to disclose
details of the individuals ultimately controlling the beneficial interests
in the shares of such body corporate.
(c) The Directors, if they think fit, may give notices under paragraphs (a) and
(b) at the same time on the basis that the notice given pursuant to
paragraph (b) shall be contingent upon disclosure of certain facts pursuant
to a notice given pursuant to paragraph (a).
(d) The Directors may require (before or after the receipt of any written
particulars under this Article) any such particulars to be verified by
statutory declaration.
(e) The Directors may serve any notice pursuant to the terms of this Article
irrespective of whether or not the Holder on whom it shall be served may be
dead, bankrupt, insolvent or otherwise incapacitated and no such incapacity
or any unavailability of information or inconvenience or hardship in
obtaining the same shall be a satisfactory reason for failure to comply
with any such notice provided that if the Directors in their absolute
discretion think fit, they may waive compliance in whole or in part with
any notice given under this Article in respect of a share in any case of
bona fide unavailability of information or genuine hardship or where they
otherwise think fit but no such waiver shall in any way prejudice or affect
any non-compliance not so waived whether by the Holder concerned or any
other joint Holder of the share or by any person to whom a notice may be
given at any time.
(f) For the purpose of establishing whether or not the terms of any notice
served under this Article shall have been complied with the decision of the
Directors in this regard shall be final and conclusive and shall bind all
persons interested.
(g) The provisions in this Article are in addition to, and do not limit, any
other right or power of the Company, including any right vested in or power
granted to the Company by the Acts.
8. Allotment of shares.
(a) Subject to the provisions of these Articles relating to new shares, the
shares shall be at the disposal of the Directors and (subject to the
provisions of the Acts) they may allot, grant options over or otherwise
dispose of them to such persons on such terms and conditions and at such
times as they may consider to be in the best interests of the Company and
its shareholders, but so that no share shall be issued at a discount and so
that, except as permitted by the Acts, no share shall be allotted unless
paid up at least as to one-quarter of the nominal amount of the share and
the whole of any premium on it.
(b) The Company may issue warrants to subscribe (by whatever name they are
called) to any person to whom the Company has granted the right to
subscribe for shares in the Company (other than under a share option scheme
for employees) certifying the right of the registered holder thereof to
subscribe for shares in the Company upon such terms and conditions as the
right may have been granted.
9. Payment of commission.
The Company may exercise the powers of paying commissions conferred by the Acts.
Subject to the provisions of the Acts, any such commission may be satisfied by
the payment of cash or by the allotment of fully or partly paid shares or partly
in one way and partly in the other. On any issue of shares the Company may also
pay such brokerage as may be lawful.
10. Payment by instalments.
If by the conditions of allotment of any share the whole or part of the amount
or issue price thereof shall be payable by instalments, every such instalment
when due shall be paid to the Company by the person who for the time being shall
be the Holder of the share.
PART III - SHARE CERTIFICATES
11. Issue of certificates.
Every member (except a Stock Exchange Nominee in respect of whom the Company is
not by law required to complete and have ready for delivery a certificate) shall
be entitled without payment to receive within two months after allotment or
lodgement of a transfer to him of the shares in respect of which he is so
registered (or within such other period as the conditions of issue shall
provide) one certificate for all the shares of each class held by him or several
certificates each for one or more of his shares upon payment for every
certificate after the first of such reasonable sum as the Directors may
determine provided that the Company shall not be bound to issue more than one
certificate for shares held jointly by several persons and delivery of a
certificate to one joint Holder shall be a sufficient delivery to all of them.
The Company shall not be bound to register more than four persons as joint
Holders of any share (except in the case of executors or trustees of a deceased
member). Every certificate shall be sealed with the Seal and shall specify the
number, class and distinguishing numbers (if any) of the shares to which it
relates and the amount or respective amounts paid up thereon.
12. Balance and exchange certificates.
(a) Where some only of the shares comprised in a share certificate are
transferred the old certificate shall be cancelled and a new certificate
for the balance of such shares shall be issued in lieu without charge.
(b) Any two or more certificates representing shares of any one class held by
any member at his request may be cancelled and a single new certificate for
such shares issued in lieu, without charge unless the Directors otherwise
determine. If any member shall surrender for cancellation a share
certificate representing shares held by him and request the Company to
issue in lieu two or more share certificates representing such shares in
such proportions as he may specify, the Directors may comply, if they think
fit, with such request.
13. Replacement of certificates.
If a share certificate is defaced, worn out, lost, stolen or destroyed, it may
be replaced on such terms (if any) as to evidence and indemnity and payment of
any exceptional expenses incurred by the Company in investigating evidence or in
relation to any indemnity as the Directors may determine but otherwise free of
charge, and (in the case of defacement or wearing out) on delivery up of the old
certificate.
PART IV - LIEN ON SHARES
14. Extent of lien.
The Company shall have a first and paramount lien on every share (not being a
fully paid share) for all moneys (whether presently payable or not) payable at a
fixed time or called in respect of that share. The Directors, at any time, may
declare any share to be wholly or in part exempt from the provisions of this
Article. The Company's lien on a share shall extend to all moneys payable in
respect of it.
15. Power of sale.
The Company may sell in such manner as the Directors determine any share on
which the Company has a lien if a sum in respect of which the lien exists is
presently payable and is not paid within fourteen Clear Days after notice
demanding payment, and stating that if the notice is not complied with the
shares may be sold, has been given to the Holder of the share or to the person
entitled to it by reason of the death or bankruptcy of the Holder.
16. Power to effect transfer.
To give effect to a sale the Directors may authorise some person to execute an
instrument of transfer of the shares sold to, or in accordance with the
directions of, the purchaser. The transferee shall be entered in the Register as
the Holder of the shares comprised in any such transfer and he shall not be
bound to see to the application of the purchase moneys nor shall his title to
the shares be affected by any irregularity in or invalidity of the proceedings
in reference to the sale, and after the name of the transferee has been entered
in the Register, the remedy of any person aggrieved by the sale shall be in
damages only and against the Company exclusively.
17. Proceeds of sale.
The net proceeds of the sale, after payment of the costs, shall be applied in
payment of so much of the sum for which the lien exists as is presently payable
and any residue (upon surrender to the Company for cancellation of the
certificate for the shares sold and subject to a like lien for any moneys not
presently payable as existed upon the shares before the sale) shall be paid to
the person entitled to the shares at the date of the sale.
PART V - CALLS ON SHARES AND FORFEITURE
18. Making of calls.
Subject to the terms of allotment, the Directors may make calls upon the members
in respect of any moneys unpaid on their shares and each member (subject to
receiving at least fourteen Clear Days' notice specifying when and where payment
is to be made) shall pay to the Company as required by the notice the amount
called on his shares. A call may be required to be paid by instalments. A call
may be revoked before receipt by the Company of a sum due thereunder, in whole
or in part and payment of a call may be postponed in whole or in part. A person
upon whom a call is made shall remain liable for calls made upon him
notwithstanding the subsequent transfer of the shares in respect of which the
call was made.
19. Time of call.
A call shall be deemed to have been made at the time when the resolution of the
Directors authorising the call was passed.
20. Liability of joint Holders.
The joint Holders of a share shall be jointly and severally liable to pay all
calls in respect thereof.
21. Interest on calls.
If a call remains unpaid after it has become due and payable the person from
whom it is due and payable shall pay interest on the amount unpaid from the day
it became due until it is paid at such rate, not exceeding 15 per cent per annum
as the Directors may determine, but the Directors may waive payment of the
interest wholly or in part.
22. Instalments treated as calls.
An amount payable in respect of a share on allotment or at any fixed date,
whether in respect of nominal value or as an instalment of a call, shall be
deemed to be a call and if it is not paid the provisions of these Articles shall
apply as if that amount had become due and payable by virtue of a call.
23. Power to differentiate.
Subject to the terms of allotment, the Directors may make arrangements on the
issue of shares for a difference between the Holders in the amounts and times of
payment of calls on their shares.
24. Interest on moneys advanced.
The Directors, if they think fit, may receive from any member willing to advance
the same all or any part of the moneys uncalled and unpaid upon any shares held
by him, and upon all or any of the moneys so advanced may pay (until the same
would, but for such advance, become payable) interest at such rate, not
exceeding (unless the Company in general meeting otherwise directs) ten per
cent. per annum, as may be agreed upon between the Directors and the member
paying such sum in advance.
25. Notice requiring payment.
(a) If a member fails to pay any call or instalment of a call on or before the
day appointed for payment thereof, the Directors, at any time thereafter
during such times as any part of the call or instalment remains unpaid, may
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid together with any interest which may have accrued.
(b) The notice shall name a further day (not earlier than the expiration of
fourteen Clear Days from the date of service of the notice) on or before
which the payment required by the notice is to be made, and shall state
that in the event of non-payment at or before the time appointed the shares
in respect of which the call was made will be liable to be forfeited.
(c) If the requirements of any such notice as aforesaid are not complied with
then, at any time thereafter before the payment required by the notice has
been made, any shares in respect of which the notice has been given may be
forfeited by a resolution of the Directors to that effect. The forfeiture
shall include all dividends or other moneys payable in respect of the
forfeited shares and not paid before forfeiture. The Directors may accept a
surrender of any share liable to be forfeited hereunder.
(d) On the trial or hearing of any action for the recovery of any money due for
any call it shall be sufficient to prove that the name of the member sued
is entered in the Register as the Holder, or one of the Holders, of the
shares in respect of which such debt accrued, that the resolution making
the call is duly recorded in the minute book and that notice of such call
was duly given to the member sued, in pursuance of these Articles, and it
shall not be necessary to prove the appointment of the Directors who made
such call nor any other matters whatsoever, but the proof of the matters
aforesaid shall be conclusive evidence of the debt.
26. Power of disposal.
A forfeited share may be sold or otherwise disposed of on such terms and in such
manner as the Directors think fit and at any time before a sale or disposition
the forfeiture may be cancelled on such terms as the Directors think fit. Where
for the purposes of its disposal such a share is to be transferred to any
person, the Directors may authorise some person to execute an instrument of
transfer of the share to that person. The Company may receive the consideration,
if any, given for the share on any sale or disposition thereof and may execute a
transfer of the share in favour of the person to whom the share is sold or
disposed of and thereupon he shall be registered as the Holder of the share and
shall not be bound to see to the application of the purchase money, if any, nor
shall his title to the share be affected by any irregularity or invalidity in
the proceedings in reference to the forfeiture, sale or disposal of the share.
27. Effect of forfeiture.
A person whose shares have been forfeited shall cease to be a member in respect
of the forfeited shares, but nevertheless shall remain liable to pay to the
Company all moneys which, at the date of forfeiture, were payable by him to the
Company in respect of the shares, but his liability shall cease if and when the
Company shall have received payment in full of all such moneys in respect of the
shares.
28. Statutory declaration.
A statutory declaration that the declarant is a Director or the Secretary of the
Company, and that a share in the Company has been duly forfeited on the date
stated in the declaration, shall be conclusive evidence of the facts therein
stated as against all persons claiming to be entitled to the share.
29. Non-payment of sums due on share issues.
The provisions of these Articles as to forfeiture shall apply in the case of
non-payment of any sum which, by the terms of issue of a share, becomes payable
at a fixed time, whether on account of the nominal value of the share or by way
of premium, as if the same had been payable by virtue of a call duly made and
notified.
PART VI - CONVERSION OF SHARES INTO STOCK
30. Conversion of shares into stock.
The Company by ordinary resolution may convert any paid up shares into stock and
reconvert any stock into paid up shares of any denomination.
31. Transfer of stock.
The Holders of stock may transfer the same or any part thereof, in the same
manner, and subject to the same regulations, as and subject to which the shares
from which the stock arose might have been transferred before conversion, or as
near thereto as circumstances admit; and the Directors may fix from time to time
the minimum amount of stock transferable but so that such minimum shall not
exceed the nominal amount of each share from which the stock arose.
32. Rights of stockholders.
(a) The Holders of stock shall have, according to the amount of stock held by
them, the same rights, privileges and advantages in relation to dividends,
voting at meetings of the Company and other matters as if they held the
shares from which the stock arose, but no such right, privilege or
advantage (except participation in the dividends and profits of the Company
and in the assets on winding up) shall be conferred by an amount of stock
which, if existing in shares, would not have conferred that right,
privilege or advantage.
(b) Such of these Articles as are applicable to paid up shares shall apply to
stock, and the words "share" and "shareholder" therein shall include
"stock" and "stockholder".
PART VII - TRANSFER OF SHARES
33. Form of instrument of transfer.
Subject to such of the restrictions of these Articles and to such of the
conditions of issue as may be applicable, the shares of any member may be
transferred by instrument in writing in any usual or common form or any other
form which the Directors may approve.
34. Execution of instrument of transfer.
The instrument of transfer of any share shall be executed by or on behalf of the
transferor and, in cases where the share is not fully paid, by or on behalf of
the transferee. The transferor shall be deemed to remain the Holder of the share
until the name of the transferee is entered in the Register in respect thereof.
35. Refusal to register transfers.
(a) The Directors in their absolute discretion and without assigning any reason
therefor may decline to register any transfer of a share which is not fully
paid, provided that the Directors shall not refuse to register any transfer
of partly paid shares which are listed or dealt in on any regulated market
of The Irish Stock Exchange Limited or of the London Stock Exchange Limited
on the grounds that they are partly paid shares in circumstances where such
refusal would prevent dealings in such shares from taking place on an open
and proper basis.
(b) The Directors may decline to recognise any instrument of transfer unless :-
(i) the instrument of transfer is accompanied by the certificate of the
shares to which it relates and such other evidence as the Directors
may reasonably require to show the right of the transferor to make the
transfer (save where the transferor is a Stock Exchange Nominee);
(ii) the instrument of transfer is in respect of one class of share only;
(iii)the instrument of transfer is in favour of not more than four
transferees; and
(iv) it is lodged at the Office or at such other place as the Directors may
appoint.
36. Procedure on refusal.
If the Directors refuse to register a transfer then, within two months after the
date on which the transfer was lodged with the Company, they shall send to the
transferee notice of the refusal.
37. Closing of transfer books.
The registration of transfers of shares or of transfers of any class of shares
may be suspended at such times and for such periods (not exceeding thirty days
in each year) as the Directors may determine.
38. Absence of registration fees.
No fee shall be charged for the registration of any instrument of transfer or
other document relating to or affecting the title to any share.
39. Retention of transfer instruments.
The Company shall be entitled to retain any instrument of transfer which is
registered, but any instrument of transfer which the Directors refuse to
register shall be returned to the person lodging it when notice of the refusal
is given.
40. Renunciation of allotment.
Nothing in these Articles shall preclude the Directors from recognising a
renunciation of the allotment of any shares by the allottee in favour of some
other person.
PART VIII - TRANSMISSION OF SHARES
41. Death of member.
If a member dies the survivor or survivors where he was a joint Holder, and his
personal representatives where he was a sole Holder or the only survivor of
joint Holders, shall be the only persons recognised by the Company as having any
title to his interest in the shares; but nothing herein contained shall release
the estate of a deceased member from any liability in respect of any share which
had been jointly held by him.
42. Transmission on death or bankruptcy.
A person becoming entitled to a share in consequence of the death or bankruptcy
of a member may elect, upon such evidence being produced as the Directors may
properly require, either to become the Holder of the share or to have some
person nominated by him registered as the transferee. If he elects to become the
Holder he shall give notice to the Company to that effect. If he elects to have
another person registered he shall execute an instrument of transfer of the
share to that person. All of these Articles relating to the transfer of shares
shall apply to the notice or instrument of transfer as if it were an instrument
of transfer executed by the member and the death or bankruptcy of the member had
not occurred.
43. Rights before registration.
A person becoming entitled to a share by reason of the death or bankruptcy of a
member (upon supplying to the Company such evidence as the Directors may
reasonably require to show his title to the share) shall have the rights to
which he would be entitled if he were the Holder of the share, except that,
before being registered as the Holder of the share, he shall not be entitled in
respect of it to attend or vote at any meeting of the Company or at any separate
meeting of the Holders of any class of shares in the Company, so, however, that
the Directors, at any time, may give notice requiring any such person to elect
either to be registered himself or to transfer the share and, if the notice is
not complied with within ninety days, the Directors thereupon may withhold
payment of all dividends, bonuses or other moneys payable in respect of the
share until the requirements of the notice have been complied with.
PART IX - ALTERATION OF SHARE CAPITAL
44. Increase of capital.
(a) The Company from time to time by ordinary resolution may increase the share
capital by such sum, to be divided into shares of such amount, as the
resolution shall prescribe.
(b) Subject to the provisions of the Acts, the new shares shall be issued to
such persons, upon any such terms and conditions and with any such rights
and privileges annexed thereto as the general meeting resolving upon the
creation thereof may direct.
(c) Except so far as otherwise provided by the conditions of issue or by these
Articles, any capital raised by the creation of new shares shall be
considered part of the pre-existing ordinary capital and shall be subject
to the provisions herein contained with reference to calls and instalments,
transfer and transmission, forfeiture, lien and otherwise.
45. Consolidation, sub-division and cancellation of capital.
The Company, by ordinary resolution, may:-
(a) consolidate and divide all or any of its share capital into shares of
larger amount;
(b) subject to the provisions of the Acts, subdivide its shares, or any of
them, into shares of smaller amount, so however that in the sub-division
the proportion between the amount paid and the amount, if any, unpaid on
each reduced share shall be the same as it was in the case of the share
from which the reduced share is derived (and so that the resolution whereby
any share is sub-divided may determine that, as between the Holders of the
shares resulting from such sub-division, one or more of the shares may
have, as compared with the others, any such preferred, deferred or other
rights or be subject to any such restrictions as the Company has power to
attach to unissued or new shares); or
(c) cancel any shares which, at the date of the passing of the resolution, have
not been taken or agreed to be taken by any person and reduce the amount of
its authorised share capital by the amount of the shares so cancelled.
46. Fractions on consolidation.
Subject to the provisions of these Articles, whenever as a result of a
consolidation of shares any members would become entitled to fractions of a
share, the Directors may sell, on behalf of those members, the shares
representing the fractions for the best price reasonably obtainable to any
person and distribute the proceeds of sale in due proportion among those members
(except that the Directors may in such event determine that amounts of or
equivalent to IR(pound)3 or less shall not be so distributed but shall be
retained for the benefit of the Company), and the Directors may authorise some
person to execute an instrument of transfer of the shares to, or in accordance
with the directions of, the purchaser. The transferee shall not be bound to see
to the application of the purchase money nor shall his title to the shares be
affected by any irregularity in or invalidity of the proceedings in reference to
the sale.
47. Reduction of capital.
The Company, by special resolution, may reduce its share capital, any capital
redemption reserve fund or any share premium account in any manner and with, and
subject to, any incident authorised, and consent required, by law.
48. Purchase of shares.
Subject to the provisions of the Acts and of these Articles, the Company may
purchase all or any of its own shares of any class, including any redeemable
shares. The Company shall not exercise any authority granted under Section 215
of the 1990 Act to make market purchases of its own shares unless the authority
required by such Section shall have been granted by a special resolution of the
Company. The Company shall not be required to select the shares to be purchased
rateably or in any other particular manner as between the holders of shares of
the same class or as between the holders of shares of different classes. Subject
as aforesaid, the Company may cancel any shares so purchased or may hold them as
treasury shares and reissue any such treasury shares as shares of any class or
classes or cancel them. Notwithstanding anything to the contrary contained in
these Articles, the rights attached to any class of shares shall be deemed not
to be varied by anything done by the Company pursuant to this Article.
PART X - GENERAL MEETINGS
49. Annual general meetings.
The Company shall hold in each year a general meeting as its annual general
meeting in addition to any other meeting in that year and shall specify the
meeting as such in the notices calling it. Not more than fifteen months shall
elapse between the date of one annual general meeting and that of the next.
50. Extraordinary general meetings.
All general meetings other than annual general meetings shall be called
extraordinary general meetings.
51. Convening general meetings.
The Directors may convene general meetings. Extraordinary general meetings may
also be convened on such requisition, or in default may be convened by such
requisitionists, and in such manner as may be provided by the Acts. If at any
time there are not within the State sufficient Directors capable of acting to
form a quorum, any Director or any two members of the Company may convene an
extraordinary general meeting in the same manner as nearly as possible as that
in which general meetings may be convened by the Directors.
52. Notice of general meetings.
(a) Subject to the provisions of the Acts allowing a general meeting to be
called by shorter notice, an annual general meeting and an extraordinary
general meeting called for the passing of a special resolution shall be
called by at least twenty-one Clear Days' notice and all other
extraordinary general meetings shall be called by at least fourteen Clear
Days' notice.
(b) Any notice convening a general meeting shall specify the time and place of
the meeting and, in the case of special business, the general nature of
that business and, in reasonable prominence, that a member entitled to
attend and vote is entitled to appoint a proxy to attend, speak and vote in
his place and that a proxy need not be a member of the Company. It shall
also give particulars of any Directors who are to retire by rotation or
otherwise at the meeting and of any persons who are recommended by the
Directors for appointment or re-appointment as Directors at the meeting, or
in respect of whom notice has been duly given to the Company of the
intention to propose them for appointment or re-appointment as Directors at
the meeting. Subject to any restrictions imposed on any shares, the notice
shall be given to all the members and to the Directors and the Auditors.
(c) The accidental omission to give notice of a meeting to, or the non-receipt
of notice of a meeting by, any person entitled to receive notice shall not
invalidate the proceedings at the meeting.
(d) Where, by any provision contained in the Acts, extended notice is required
of a resolution, the resolution shall not be effective (except where the
Directors of the Company have resolved to submit it) unless notice of the
intention to move it has been given to the Company not less than
twenty-eight days (or such shorter period as the Acts permit) before the
meeting at which it is moved, and the Company shall give to the members
notice of any such resolution as required by and in accordance with the
provisions of the Acts.
PART XI - PROCEEDINGS AT GENERAL MEETINGS
53. Quorum for general meetings.
(a) No business other than the appointment of a chairman shall be transacted at
any general meeting unless a quorum of members is present at the time when
the meeting proceeds to business. Except as provided in relation to an
adjourned meeting, three persons entitled to vote upon the business to be
transacted, each being a member or a proxy for a member or a duly
authorised representative of a corporate member, shall be a quorum.
(b) If such a quorum is not present within half an hour from the time appointed
for the meeting, or if during a meeting a quorum ceases to be present, the
meeting shall stand adjourned to the same day in the next week at the same
time and place, or to such time and place as the Directors may determine.
If at the adjourned meeting such a quorum is not present within half an
hour from the time appointed for the meeting, the meeting, if convened
otherwise than by resolution of the Directors, shall be dissolved, but if
the meeting shall have been convened by resolution of the Directors, two
persons entitled to be counted in a quorum present at the meeting shall be
a quorum.
54. Special business.
All business shall be deemed special that is transacted at an extraordinary
general meeting. All business that is transacted at an annual general meeting
shall also be deemed special, with the exception of declaring a dividend, the
consideration of the accounts, balance sheets and reports of the Directors and
Auditors, the election of Directors in the place of those retiring, the fixing
of the remuneration of the Directors, the re-appointment of the retiring
Auditors and the fixing of the remuneration of the Auditors.
55. Chairman of general meetings.
(a) The chairman of the board of Directors or, in his absence, the deputy
chairman (if any) or, in his absence, some other Director nominated by the
Directors shall preside as chairman at every general meeting of the
Company. If at any general meeting none of such persons shall be present
within fifteen minutes after the time appointed for the holding of the
meeting and willing to act, the Directors present shall elect one of their
number to be chairman of the meeting and, if there is only one Director
present and willing to act, he shall be chairman.
(b) If at any meeting no Director is willing to act as chairman or if no
Director is present within fifteen minutes after the time appointed for
holding the meeting, the members present and entitled to vote shall choose
one of the members personally present to be chairman of the meeting.
56. Directors' and Auditors' right to attend general meetings.
A Director shall be entitled, notwithstanding that he is not a member, to attend
and speak at any general meeting and at any separate meeting of the Holders of
any class of shares in the Company. The Auditors shall be entitled to attend any
general meeting and to be heard on any part of the business of the meeting which
concerns them as the Auditors.
57. Adjournment of general meetings.
The chairman, with the consent of a meeting at which a quorum is present, may
(and if so directed by the meeting, shall) adjourn the meeting from time to time
(or sine die) and from place to place, but no business shall be transacted at
any adjourned meeting other than business which might properly have been
transacted at the meeting had the adjournment not taken place. Where a meeting
is adjourned sine die, the time and place for the adjourned meeting shall be
fixed by the Directors. When a meeting is adjourned for fourteen days or more or
sine die, at least seven Clear Days' notice shall be given specifying the time
and meeting and the general nature of the business to be transacted. Save as
aforesaid it shall not be necessary to give any notice of an adjourned meeting.
58. Determination of resolutions.
At any general meeting a resolution put to the vote of the meeting shall be
decided on a show of hands unless before, or on the declaration of the result
of, the show of hands a poll is duly demanded. Unless a poll is so demanded a
declaration by the chairman that a resolution has been carried or carried
unanimously, or by a particular majority, or lost, or not carried by a
particular majority and an entry to that effect in the minutes of the meeting
shall be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the resolution. The
demand for a poll may be withdrawn before the poll is taken but only with the
consent of the chairman, and a demand so withdrawn shall not be taken to have
invalidated the result of a show of hands declared before the demand was made.
59. Entitlement to demand poll.
Subject to the provisions of the Acts, a poll may be demanded:-
(a) by the chairman of the meeting;
(b) by at least three members present (in person or by proxy) having the right
to vote at the meeting;
(c) by any member or members present (in person or by proxy) representing not
less than one-tenth of the total voting rights of all the members having
the right to vote at the meeting; or
(d) by a member or members present (in person or by proxy) holding shares in
the Company conferring the right to vote at the meeting being shares on
which an aggregate sum has been paid up equal to not less than one-tenth of
the total sum paid up on all the shares conferring that right.
60. Taking of a poll.
(a) Save as provided in paragraph (b) of this Article, a poll shall be taken in
such manner as the chairman directs and he may appoint scrutineers (who
need not be members) and fix a time and place for declaring the result of
the poll. The result of the poll shall be deemed to be the resolution of
the meeting at which the poll was demanded.
(b) A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken either forthwith or at such time (not being more than thirty
days after the poll is demanded) and place as the chairman of the meeting
may direct. The demand for a poll shall not prevent the continuance of a
meeting for the transaction of any business other than the question on
which the poll was demanded. If a poll is demanded before the declaration
of the result of a show of hands and the demand is duly withdrawn, the
meeting shall continue as if the demand had not been made.
(c) No notice need be given of a poll not taken forthwith if the time and place
at which it is to be taken are announced at the meeting at which it is
demanded. In any other case at least seven Clear Days' notice shall be
given specifying the time and place at which the poll is to be taken.
61. Votes of members.
Votes may be given either personally or by proxy. Subject to any rights or
restrictions for the time being attached to any class or classes of shares, on a
show of hands every member present in person and every proxy shall have one
vote, so, however, that no individual shall have more than one vote, and on a
poll every member shall have one vote for every share carrying voting rights of
which he is the Holder. On a poll a member entitled to more than one vote need
not cast all his votes or cast in the same way all the votes cast by him.
62. Chairman's casting vote.
Where there is an equality of votes, whether on a show of hands or on a poll,
the chairman of the meeting at which the show of hands takes place or at which
the poll is demanded shall be entitled to a casting vote in addition to any
other vote he may have.
63. Voting by joint Holders.
Where there are joint Holders of a share, the vote of the senior who tenders a
vote, whether in person or by proxy, in respect of such share shall be accepted
to the exclusion of the votes of the other joint Holders; and for this purpose
seniority shall be determined by the order in which the names of the Holders
stand in the Register in respect of the share.
64. Voting by incapacitated Holders.
A member of unsound mind, or in respect of whom an order has been made by any
court having jurisdiction (whether in the State or elsewhere) in matters
concerning mental disorder, may vote, whether on a show of hands or on a poll,
by his committee, receiver, guardian or other person appointed by that court and
any such committee, receiver, guardian or other person may vote by proxy on a
show of hands or on a poll. Evidence to the satisfaction of the Directors of the
authority of the person claiming to exercise the right to vote shall be
deposited at the Office, or at such other place as is specified in accordance
with these Articles for the deposit of instruments of proxy, not less than
forty-eight hours before the time appointed for holding the meeting or adjourned
meeting at which the right to vote is to be exercised and in default the right
to vote shall not be exercisable.
65. Default in payment of calls.
Unless the Directors otherwise determine, no member shall be entitled to vote at
any general meeting or any separate meeting of the Holders of any class of
shares in the Company, either in person or by proxy, or to exercise any
privilege as a member in respect of any share held by him unless all moneys then
payable by him in respect of that share have been paid.
66. Restriction of voting and other rights.
(a) If at any time the Directors shall determine that a Specified Event (as
defined in paragraph (g)) shall have occurred in relation to any share or
shares the Directors may serve a notice to such effect on the Holder or
Holders thereof. Upon the expiry of 14 days from the service of any such
notice (in these Articles referred to as a "Restriction Notice"), for so
long as such Restriction Notice shall remain in force:-
(i) no Holder or Holders of the share or shares specified in such
Restriction Notice (in these Articles referred to as "Specified
Shares") shall be entitled to attend, speak or vote either personally,
by representative or by proxy at any general meeting of the Company or
at any separate general meeting of the Holders of the class of shares
concerned or to exercise any other right conferred by membership in
relation to any such meeting; and
(ii) the Directors shall, where the Specified Shares represent not less
than 0.25 per cent of the class of shares concerned, be entitled:-
A. to withhold payment of any dividend or other amount payable
(including shares issuable in lieu of dividends) in respect of
the Specified Shares; and/or
B. where the Specified Event concerned is the event described in
sub-paragraph (i) or (iii) of paragraph (g), to refuse to
register any transfer of the Specified Shares or any renunciation
of any allotment of new shares or debentures made in respect
thereof unless such transfer or renunciation is shown to the
satisfaction of the Directors to be an arm's length transfer or
renunciation to another beneficial owner unconnected with the
Holder or any person appearing to have an interest in the
Specified Shares (subject always to the provisions of paragraph
(h)).
(b) A Restriction Notice shall be cancelled by the Directors as soon as
reasonably practicable, but in any event not later than forty-eight hours,
after the Holder or Holders concerned shall have remedied the default by
virtue of which the Specified Event shall have occurred. A Restriction
Notice in respect of any Specified Share shall automatically cease to have
effect in respect of any share transferred at arm's length to an
unconnected third party upon registration of the relevant transfer provided
that a Restriction Notice shall not cease to have effect in respect of any
transfer where no change in the beneficial ownership of the Specified Share
shall occur and for this purpose it shall be assumed that no such change
has occurred where a transfer form in respect of the Specified Share is
presented for registration having been stamped at a reduced rate of stamp
duty by virtue of the transferor or transferee claiming to be entitled to
such reduced rate as a result of the transfer being one where no beneficial
interest passes.
(c) The Directors shall cause a notation to be made in the Register against the
name of any Holder or Holders in respect of whom a Restriction Notice shall
have been served indicating the number of Specified Shares specified in
such Restriction Notice and shall cause such notation to be deleted upon
cancellation or cesser of such Restriction Notice.
(d) Any determination of the Directors and any notice served by them pursuant
to the provisions of this Article shall be conclusive as against the Holder
or Holders of any share and the validity of any notice served by the
Directors in pursuance of this Article shall not be questioned by any
person.
(e) If, while any Restriction Notice shall remain in force in respect of any
Specified Shares, any further shares shall be issued in respect thereof
pursuant to a capitalisation issue under these Articles, the Restriction
Notice shall be deemed also to apply to such Holder or Holders in respect
of such further shares which shall as from the date of issue thereof form
part of the Specified Shares for all purposes of this Article.
(f) On the cancellation of any Restriction Notice, the Company shall pay to the
Holder (or, in the case of joint Holders, the first named Holder) on the
Register in respect of the Specified Shares as of the record date for any
such dividend so withheld, all such amounts as have been withheld pursuant
to the provisions of this Article subject always to the provisions of
Article 112 which shall be deemed to apply, mutatis mutandis, to any amount
so withheld.
(g) For the purpose of these Articles the expression "Specified Event" in
relation to any share shall mean either of the following events:-
(i) the failure of the Holder or Holders thereof to pay any call or
instalment of a call in the manner and at the time appointed for
payment thereof;
(ii) the failure by the Holder thereof or any of the Holders thereof to
comply, to the satisfaction of the Directors, with all or any of the
terms of Article 7 in respect of any notice or notices given to him or
any of them thereunder; or
(iii)the failure by the Holder thereof or any of the Holders thereof to
comply, to the satisfaction of the Directors, with the terms of any
notice given to him or any of them pursuant to the provisions of
Section 81 of the 1990 Act.
(h) For the purposes of paragraph (a)(ii)B, the Directors shall be required to
accept, as an arm's length transfer to another unconnected beneficial
owner, any transfer of a share which is presented for registration in
pursuance of:-
(i) any bona fide sale made on any bona fide stock exchange, unlisted
securities market or over-the-counter exchange; or
(ii) the acceptance of any general offer made to all the Holders of any
class of shares in the capital of the Company.
67. Time for objection to voting.
No objection shall be raised to the qualification of any voter except at the
meeting or adjourned meeting at which the vote objected to is tendered and every
vote not disallowed at such meeting shall be valid. Any such objection made in
due time shall be referred to the chairman of the meeting whose decision shall
be final and conclusive.
68. Appointment of proxy.
(a) Every member entitled to attend and vote at a general meeting may appoint a
proxy to attend, speak and vote on his behalf. The instrument appointing a
proxy shall be in writing in any usual form or in any other form which the
Directors may approve and shall be executed by or on behalf of the
appointor. The signature on such instrument need not be witnessed. A body
corporate may execute a form of proxy under its common seal or under the
hand of a duly authorised officer thereof. A proxy need not be a member of
the Company.
(b) The Directors may, if they think fit, at any time and from time to time
permit the appointment and revocation of proxies to be made or transmitted
by telex or facsimile upon and subject to such terms and conditions as the
Directors shall determine, and the provisions of paragraph (a) and of
Articles 70 and 71 shall be deemed not to apply to any appointment or
revocation of a proxy made or transmitted in accordance with any such
permission to the extent that those provisions are inconsistent with that
permission.
69. Bodies corporate acting by representatives at meetings.
Any body corporate which is a member of the Company may by resolution of its
Directors or other governing body authorise such person as it thinks fit to act
as its representative at any meeting of the Company or of any class of members
of the Company and the person so authorised shall be entitled to exercise the
same powers on behalf of the body corporate which he represents as that body
corporate could exercise if it were an individual member of the Company.
70. Deposit and effect of proxy instruments.
(a) The instrument appointing a proxy and any authority under which it is
executed (or a copy of such authority, certified notarially or in some
other way approved by the Directors), shall be deposited at the Office or
(at the option of the member) at such other place or one of such other
places (if any) as may be specified for that purpose in or by way of note
to the notice convening the meeting (or any instrument of proxy sent out by
the Company in relation to the meeting) not less than forty-eight hours
before the time appointed for the holding of the meeting or adjourned
meeting or (in the case of a poll taken otherwise than at or on the same
day as the meeting or adjourned meeting) for the taking of the poll at
which it is to be used, and in default shall not be treated as valid.
Provided that:-
(i) in the case of a meeting which is adjourned to, or a poll which is to
be taken on, a date which is less than seven days after the date of
the meeting which was adjourned or at which the poll was demanded, it
shall be sufficient if the instrument of proxy and any such authority
and certification thereof as aforesaid is lodged with the Secretary at
the commencement of the adjourned meeting or the taking of the poll;
and
(ii) an instrument of proxy relating to more than one meeting (including
any adjournment thereof) having once been so delivered for the
purposes of any meeting shall not require to be delivered again for
the purposes of any subsequent meeting to which it relates.
(b) Deposit of an instrument of proxy in respect of a meeting shall not
preclude a member from attending and voting at the meeting or at any
adjournment thereof. The instrument appointing a proxy shall be valid,
unless the contrary is stated therein, as well for any adjournment of the
meeting as for the meeting to which it relates.
71. Effect of revocation of proxy or of authorisation.
(a) A vote given or poll demanded by a proxy or the duly authorised
representative of a body corporate shall be valid notwithstanding the
previous death or insanity of the principal, or the revocation of the
instrument of proxy or of the authority under which the instrument of proxy
was executed or of the resolution authorising the representative to act or
the transfer of the share in respect of which the instrument of proxy or
the authorisation of the representative to act was given, provided that no
intimation in writing of such death, insanity, revocation or transfer shall
have been received by the Company at the Office, or at such other place or
one of such other places (if any) at which the instrument of proxy could
have been duly deposited, at least one hour before the commencement of the
meeting or adjourned meeting at which the instrument of proxy is used or at
which the representative acts.
(b) The Directors may send, at the expense of the Company, by post or
otherwise, to the members instruments of proxy (with or without stamped
envelopes for their return) for use at any general meeting or at any class
meeting, either in blank or nominating any one or more of the Directors or
any other persons in the alternative. If for the purpose of any meeting
invitations to appoint as proxy a person or one of a number of persons
specified in the invitations are issued at the expense of the Company, such
invitations shall be issued to all (and not to some only) of the members
entitled to be sent a notice of the meeting and to vote thereat by proxy.
72. Members resolutions in writing.
Subject to Section 141 of the 1963 Act, a resolution in writing signed by all
the members for the time being entitled to receive notice of and to attend and
vote at general meetings (or being bodies corporate, by their duly authorised
representatives) shall be as valid as if the same had been passed at a general
meeting of the company duly convened and held and may consist of several
documents in the like form each signed by one or more of such members.
PART XII - DIRECTORS
73. Number of Directors.
Unless otherwise determined by the Company in general meeting, the number of
Directors shall not be more than twelve nor less than two. The continuing
Directors may act notwithstanding any vacancy in their body, provided that if
the number of the Directors is reduced below the prescribed minimum the
remaining Director or Directors shall appoint forthwith an additional Director
or additional Directors to make up such minimum or shall convene a general
meeting of the Company for the purpose of making such appointment. If there be
no Director or Directors able or willing to act then any two shareholders may
summon a general meeting for the purpose of appointing Directors.
74. Share qualification.
A Director shall not require a share qualification.
75. Ordinary remuneration of Directors.
The ordinary remuneration of the Directors shall be determined from time to time
by an ordinary resolution of the Company and shall be divisible (unless such
resolution shall provide otherwise) among the Directors as they may agree, or,
failing agreement, equally, except that any Director who shall hold office for
part only of the period in respect of which such remuneration is payable shall
be entitled only to rank in such division for a proportion of the remuneration
related to the period during which he has held office.
76. Special remuneration of Directors.
Any Director who holds any executive office (including for this purpose the
office of chairman or deputy chairman of the board of Directors) or who serves
on any committee, or who otherwise performs services which in the opinion of the
Directors are outside the scope of the ordinary duties of a Director, may be
paid such extra remuneration by way of salary, commission or otherwise as the
Directors may determine.
77. Expenses of Directors.
The Directors may be paid all travelling, hotel and other expenses properly
incurred by them in connection with their attendance at meetings of Directors or
committees of Directors or general meetings or separate meetings of the Holders
of any class of shares or of debentures of the Company or otherwise in
connection with the discharge of their duties.
PART XIII - POWERS OF DIRECTORS
78. Directors' powers.
Subject to the provisions of the Acts, the memorandum of association of the
Company and these Articles and to any directions given by the members given by
ordinary resolution, not being inconsistent with these Articles or with the
Acts, the business of the Company shall be managed by the Directors who may do
all such acts and things and exercise all the powers of the Company as are not
by the Act or by these Articles required to be done or exercised by the Company
in general meeting. No alteration of the memorandum of association of the
Company or of these Articles and no such direction shall invalidate any prior
act of the Directors which would have been valid if that alteration had not been
made or that direction had not been given. The powers given by this Article
shall not be limited by any special power given to the Directors by these
Articles and a meeting of Directors at which a quorum is present may exercise
all powers exercisable by the Directors.
79. Power to delegate.
Without prejudice to the generality of the last preceding Article, the Directors
may delegate any of their powers to any managing Director or any Director
holding any other executive office and to any committee consisting of one or
more Directors together with such other persons (if any) as may be appointed to
such committee by the Directors provided that a majority of the members of each
committee appointed by the Directors shall at all times consist of Directors and
that no resolution of any such committee shall be effective unless a majority of
the members of the committee present at the meeting at which it was passed are
Directors. Any such delegation may be made subject to any conditions that the
Directors may impose, and either collaterally with or to the exclusion of their
own powers and may be revoked. Subject to any such conditions, the proceedings
of a committee with two or more members shall be governed by the provisions of
these Articles regulating the proceedings of Directors so far as they are
capable of applying.
80. Appointment of attorneys.
The Directors, from time to time and at any time by power of attorney under
seal, may appoint any company, firm or person or fluctuating body of persons,
whether nominated directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purposes and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Directors under
these Articles) and for such period and subject to such conditions as they may
think fit. Any such power of attorney may contain such provisions for the
protection of persons dealing with any such attorney as the Directors may think
fit and may authorise any such attorney to delegate all or any of the powers,
authorities and discretions vested in him.
81. Local management.
Without prejudice to the generality of Article 78, the Directors may establish
any committees, local boards or agencies for managing any of the affairs of the
Company, either in the State or elsewhere, and may appoint any persons to be
members of such committees, local boards or agencies and may fix their
remuneration and may delegate to any committee, local board or agent any of the
powers, authorities and discretions vested in the Directors with power to
sub-delegate and any such appointment or delegation may be made upon such terms
and subject to such conditions as the Directors may think fit, and the Directors
may remove any person so appointed, and may annul or vary any such delegation,
but no person dealing in good faith with any such committee, local board or
agency, without notice of any such removal, annulment or variation shall be
affected thereby.
82. Borrowing powers.
The Directors may exercise all the powers of the Company to borrow or raise
money and to mortgage or charge its undertaking, property, assets, and uncalled
capital or any part thereof and, subject to the Acts, to issue debentures,
debenture stock and other securities whether outright or as collateral security
for any debt, liability or obligation of the Company or of any third party,
without any limitation as to amount.
83. Execution of negotiable instruments.
All cheques, promissory notes, drafts, bills of exchange and other negotiable
instruments and all receipts for moneys paid to the Company shall be signed,
drawn, accepted, endorsed or otherwise executed, as the case may be, by such
person or persons and in such manner as the Directors shall determine from time
to time by resolution.
PART XIV - APPOINTMENT AND RETIREMENT OF DIRECTORS
84. Classes of Directors.
(a) The Board of Directors shall be and is divided into three classes
("Classes"), namely Class I, Class II and Class III. No one Class shall
have more than one Director more than any other Class. If a fraction is
contained in the quotient arrived at by dividing by three the number of
Directors holding office at any time, then, if such fraction is one-third,
the extra Director shall be a member of Class II, and if such fraction is
two-thirds, one of the two extra Directors shall be a member of Class I and
the other shall be a member of Class II, unless otherwise provided from
time to time by resolution adopted by the Board of Directors.
(b) The Directors holding office at the date of adoption of these Articles (the
"initial Directors") shall be allocated amongst the Classes as follows:
Class I: William F. Cunningham
David P. Mixer
Fergus McGovern
Class II: John A. Blanchard
Brian E. Boyle
Richard A. Licursi
John W. Sidgmore
Class III: John J. Boyle III
James B. Murray
Bruce A. Saville.
(c) Unless they or any of them shall have vacated office previously in
accordance with the provisions of these Articles, the Directors in each
Class shall retire from office at the third annual general meeting
following the annual general meeting at which Directors in that Class were
last elected; provided that each initial Director in Class I shall retire
from office at the annual general meeting next following the end of the
Company's financial year ending December 31, 1995; each initial Director in
Class II shall retire from office at the annual general meeting next
following the end of the Company's financial year ending December 31, 1996;
and each initial Director in Class III shall retire from office at the
annual general meeting next following the financial year ending December
31, 1997.
(d) A Director who retires at an annual general meeting may offer himself for
re-election. The Company may, at the meeting at which a Director retires as
aforesaid, fill the vacated office by electing a person thereto, and in
default the retiring Director shall, if offering himself for re-election,
be deemed to have been re-elected unless at such meeting it is expressly
resolved not to fill such vacated office or unless a resolution for the
re-election of such Director has been put to the meeting and lost. A
Director who retires at an annual general meeting and is not re-elected
shall retain office until the meeting appoints someone in his place or, if
it does not do so, until the end of the meeting.
(e) A retiring Director who is re-elected shall remain allocated to the Class
to which he was allocated prior to his retirement. A person who is elected
a Director in place of a retiring Director or who is appointed a Director
by the members to fill a casual vacancy or in place of a Director removed
from office under Article 88 shall be allocated to the Class to which the
retiring Director, the vacating Director or, as the case may be, the
Director so removed had been allocated. Subject to Article 84(a), a person
who is appointed by the members as a Director under Article 73 or as an
additional Director under Article 86 shall be allocated to such Class as
the members may determine at the meeting at which he is appointed or,
failing such determination, as the Directors shall determine. A Director
who is appointed a Director by the Directors under any provisions of these
Articles shall be allocated by the Directors to a Class the Directors in
which will be required to retire from office at the next following annual
general meeting.
85. Eligibility for appointment.
(a) No person shall be elected or appointed a Director at any general meeting
unless he is recommended by the Directors or, not less than seven nor more
than forty two days before the date appointed for the meeting, notice
executed by a member qualified to vote at the meeting has been given to the
Company of the intention to propose that person for election or appointment
stating the particulars which, if he were so elected or appointed, would be
required to be included in the Company's register of Directors together
with notice executed by that person of his willingness to be elected or
appointed.
(b) No Director shall be required to retire on account of age.
86. Appointment of additional Directors.
Subject to any such appointment not causing the number of Directors fixed by or
in accordance with these Articles to be exceeded and subject as otherwise
provided by these Articles:
(a) the Company by ordinary resolution may appoint a person who is willing to
act to be a Director either to fill a casual vacancy or as an additional
Director; and
(b) the Directors may appoint a person who is willing to act to be a Director
either to fill a casual vacancy or as an additional Director.
PART XV - DISQUALIFICATION AND REMOVAL OF DIRECTORS
87. Disqualification of Directors.
The office of a Director shall be vacated ipso facto if:-
(a) he ceases to be a Director or is prohibited from being a Director, by
virtue of any provision of the Acts or if the court makes a declaration in
respect of him under Section 150 of the 1990 Act;
(b) he becomes bankrupt or makes any arrangement or composition with his
creditors generally;
(c) in the opinion of a majority of his co-Directors, he becomes incapable by
reason of mental disorder of discharging his duties as a Director;
(d) (not being a Director holding for a fixed term an executive office in his
capacity as a Director) he resigns his office by notice to the Company;
(e) he is convicted of an indictable offence, unless the Directors otherwise
determine;
(f) he shall have been absent for more than six consecutive months without
permission of the Directors from meetings of the Directors held during that
period and the Directors pass a resolution that by reason of such absence
he has vacated office;
(g) he is required in writing by all his co-Directors to resign.
88. Removal of Directors.
The Company, by ordinary resolution of which extended notice has been given in
accordance with the provisions of the Acts, may remove any Director before the
expiry of his period of office notwithstanding anything in these Articles or in
any agreement between the Company and such Director and may, if thought fit, by
ordinary resolution appoint another Director in his stead. Nothing in this
Article shall be taken as depriving a person removed hereunder of compensation
or damages payable to him in respect of the termination of his appointment as
Director or of any appointment terminating with that of Director.
PART XVI - DIRECTORS' OFFICES AND INTERESTS
89. Executive offices.
(a) The Directors may appoint one or more of their body to the office of
Managing Director or Joint Managing Director or to any other executive
office under the Company (including, where considered appropriate, the
office of chairman) on such terms and for such period as they may determine
and, without prejudice to the terms of any contract entered into in any
particular case, may revoke any such appointment at any time.
(b) A Director holding any such executive office shall receive such
remuneration, whether in addition to or in substitution for his ordinary
remuneration as a Director and whether by way of salary, commission,
participation in profits or otherwise or partly in one way and partly in
another, as the Directors may determine.
(c) The appointment of any Director to the office of chairman or Managing or
Joint Managing Director shall determine automatically if he ceases to be a
Director but without prejudice to any claim for damages for breach of any
contract of service between him and the Company.
(d) The appointment of any Director to any other executive office shall not
determine automatically if he ceases from any cause to be a Director unless
the contract or resolution under which he holds office shall expressly
state otherwise, in which event such determination shall be without
prejudice to any claim for damages for breach of any contract of service
between him and the Company.
(e) A Director may hold any other office or place of profit under the Company
(except that of Auditor) in conjunction with his office of Director, and
may act in a professional capacity to the Company, on such terms as to
remuneration and otherwise as the Directors shall arrange.
90. Directors' interests.
(a) Subject to the provisions of the Acts, and provided that he has disclosed
to the Directors the nature and extent of any material interest of his, a
Director notwithstanding his office:-
(i) may be a party to, or otherwise interested in, any transaction or
arrangement with the Company or any subsidiary or associated company
thereof or in which the Company or any subsidiary or associated
company thereof is otherwise interested;
(ii) may be a Director or other officer of, or employed by, or a party to
any transaction or arrangement with, or otherwise interested in, any
body corporate promoted by the Company or in which the Company or any
subsidiary or associated company thereof is otherwise interested; and
(iii)shall not be accountable, by reason of his office, to the Company for
any remuneration or other benefit which he derives from any such
office or employment or from any such transaction or arrangement or
from any interest in any such body corporate and no such transaction
or arrangement shall be liable to be avoided on the ground of any such
interest or benefit.
(b) No Director or intending Director shall be disqualified by his office from
contracting with the Company either as vendor, purchaser or otherwise, nor
shall any such contract or any contract or arrangement entered into by or
on behalf of the other Company in which any Director shall be in any way
interested be avoided nor shall any Director so contracting or being so
interested be liable to account to the Company for any profit realised by
any such contract or arrangement by reason of such Director holding that
office or of the fiduciary relationship thereby established. The nature of
a Director's interest, whether direct or indirect, must be declared by him
at the meeting of the Directors at which the question of entering into the
contract or arrangement is first taken into consideration, or if the
Director was not at the date of that meeting interested in the proposed
contract or arrangement at the next meeting of the Directors held after he
became so interested, and in a case where the Director becomes interested
in a contract or arrangement after it is made at the first meeting of the
Directors held after he becomes so interested.
(c) A copy of every declaration made and notice given under this Article shall
be entered within three days after the making or giving thereof in a book
kept for this purpose. Such book shall be open for inspection without
charge by any Director, Secretary, Auditor or member of the Company at the
Office and shall be produced at every general meeting of the Company and at
any meeting of the Directors if any Director so requests in sufficient time
to enable the book to be available at the meeting.
(d) For the purposes of this Article:-
(i) a general notice given to the Directors that a Director is to be
regarded as having an interest of the nature and extent specified in
the notice in any transaction or arrangement in which a specified
person or class of persons is interested shall be deemed to be a
disclosure that the Director has an interest in any such transaction
of the nature and extent so specified; and
(ii) an interest of which a Director has no knowledge and of which it is
unreasonable to expect him to have knowledge shall not be treated as
an interest of his.
91. Restriction on Directors' voting.
(a) Save as otherwise provided by these Articles, a Director shall not vote at
a meeting of the Directors or a committee of Directors on any resolution
concerning a matter in which he has an interest which (together with any
interest of any person connected with him within the meaning of paragraph
(e)) is to his knowledge material (otherwise than by virtue of his
interests in shares or debentures or other securities of, or otherwise in
or through, the Company) or a duty which conflicts or may conflict with the
interests of the Company. A Director shall not be counted in the quorum
present at a meeting in relation to any such resolution on which he is not
entitled to vote.
(b) A Director shall be entitled (in the absence of some other material
interest than is indicated below) to vote (and be counted in the quorum) in
respect of any resolution concerning any of the following matters, namely:-
(i) the giving of any security, guarantee or indemnity to him in respect
of money lent by him to the Company or any of its subsidiaries or
obligations incurred by him at the request of or for the benefit of
the Company or any of its subsidiaries;
(ii) the giving of any security, guarantee or indemnity to a third party in
respect of a debt or obligation of the Company or any of its
subsidiaries for which he himself has assumed responsibility in whole
or in part and whether alone or jointly with others under a guarantee
or indemnity or by the giving of security;
(iii)any proposal concerning any offer of shares or debentures or other
securities of or by the Company or any of its subsidiaries for
subscription, purchase or exchange in which offer he is or is to be
interested as a holder of securities or as a participant in the
underwriting or sub-underwriting thereof;
(iv) any proposal concerning any other company in which he (together with
any persons connected with him within the meaning of paragraph (e))
does not to his knowledge have an interest (as that term is used in
Chapter 2 of Part IV of the 1990 Act) in one per cent. or more of
either any class of the equity share capital of, or the voting rights
in, such company;
(v) any proposal relating to any arrangement for the benefit of employees
of the Company or any of its subsidiaries which does not award him any
privilege or benefit not generally awarded to the employees to which
such arrangement relates; or
(vi) the granting of any such indemnity, or the discharge of the cost of
any such insurance cover, as is referred to in Article 130.
(c) Where proposals are under consideration concerning the appointment
(including fixing or varying the terms of appointment) of two or more
Directors to offices or employments with the Company or any company in
which the Company is interested, such proposals may be divided and
considered in relation to each Director separately and in such case each of
the Directors concerned (if not debarred from voting under sub-paragraph
(b) (iv) of this Article) shall be entitled to vote (and be counted in the
quorum) in respect of each resolution except that concerning his own
appointment.
(d) If a question arises at a meeting of Directors or of a committee of
Directors as to the materiality of a Director's interest or as to the right
of any Director to vote and such question is not resolved by his
voluntarily agreeing to abstain from voting, such question may be referred,
before the conclusion of the meeting, to the chairman of the meeting and
his ruling in relation to any Director other than himself shall be final
and conclusive.
(e) For the purposes of this Article, section 26 of the 1990 Act shall apply
for the purposes of determining whether a person is connected with a
Director except that in paragraph (b)(iv) a person who is a child (not
being a minor child), parent, brother or sister of a Director shall not by
virtue only of that relationship be deemed to be connected with the
Director.
(f) The Company by ordinary resolution may suspend or relax the provisions of
this Article to any extent or ratify any transaction not duly authorised by
reason of a contravention of this Article.
92. Entitlement to grant pensions.
The Directors may provide benefits, whether by way of pensions, gratuities or
otherwise, for any Director, former Director or other officer or former officer
of the Company or to any person who holds or has held any employment with the
Company or with any body corporate which is or has been a subsidiary or
associated company of the Company or a predecessor in business of the Company or
of any such subsidiary or associated company and to any member of his family or
any person who is or was dependent on him and may set up, establish, support,
alter, maintain and continue any scheme for providing all or any such benefits
and for such purposes any Director accordingly may be, become or remain a member
of, or rejoin, any scheme and receive or retain for his own benefit all benefits
to which he may be or become entitled thereunder. The Directors may pay out of
the funds of the Company any premiums, contributions or sums payable by the
Company under the provisions of any such scheme in respect of any of the persons
or class of persons above referred to who are or may be or become members
thereof.
PART XVII - PROCEEDINGS OF DIRECTORS
93. Convening and regulation of Directors' meetings.
(a) Subject to the provisions of these Articles, the Directors may regulate
their proceedings as they think fit. A Director may, and the Secretary at
the request of a Director shall, call a meeting of the Directors. Any
Director may waive notice of any meeting and any such waiver may be
retrospective. If the Directors so resolve, it shall not be necessary to
give notice of a meeting of Directors to any Director who, being a resident
of the State, is for the time being absent from the State.
(b) Notice of a meeting of the Directors shall be deemed to be duly given to a
Director if it is given to him personally or by word of mouth or sent in
writing by delivery, post, cable, telegram, telex, telefax, electronic mail
or any other means of communication approved by the Directors to him at his
last known address or any other address given by him to the Company for
this purpose.
94. Quorum for Directors' meetings.
(a) The quorum for the transaction of the business of the Directors may be
fixed by the Directors and unless so fixed at any other number shall be
two.
(b) The continuing Directors or a sole Director may act notwithstanding any
vacancies in their number but if the number of Directors is less than the
number fixed as the quorum, they may act only for the purpose of filling
vacancies or of calling a general meeting.
95. Voting at Directors' meetings.
Questions arising at any meeting of Directors shall be decided by a majority of
votes. Where there is an equality of votes, the chairman of the meeting shall
have a second or casting vote.
96. Telecommunication meetings.
Any Director may participate in a meeting of the Directors or any committee of
the Directors by means of conference telephone or other telecommunications
equipment by means of which all persons participating in the meeting can hear
each other speak and such participation in a meeting shall constitute presence
in person at the meeting.
97. Chairman of board of Directors.
Subject to any appointment to the office of chairman of the board of Directors
made pursuant to these Articles, the Directors may elect a chairman of their
meetings and determine the period for which he is to hold office, but if no such
chairman is appointed or elected or if at any meeting any such chairman is
unwilling to act or is not present within five minutes after the time appointed
for holding the same the Directors present may choose one of their number to be
chairman of the meeting.
98. Validity of acts of Directors.
All acts done by any meeting of the Directors or of a committee of Directors or
by any person acting as a Director, notwithstanding that it be afterwards
discovered that there was some defect in the appointment of any such Director or
person acting as aforesaid, or that they or any of them were disqualified from
holding office or had vacated office, shall be as valid as if every such person
had been duly appointed and was qualified and had continued to be a Director and
had been entitled to vote.
99. Directors' resolutions or other documents in writing.
A resolution or other document in writing signed by all the Directors entitled
to receive notice of a meeting of Directors or of a committee of Directors shall
be as valid as if it had been passed at a meeting of Directors or (as the case
may be) a committee of Directors duly convened and held and may consist of
several documents in the like form each signed by one or more Directors.
PART XVIII - THE SECRETARY
100. Appointment of Secretary.
The Secretary shall be appointed by the Directors for such term, at such
remuneration and upon such conditions as they may think fit and any Secretary so
appointed may be removed by them. Anything required or authorised by the Acts or
these Articles to be done by the Secretary may be done, if the office is vacant
or there is for any other reason no Secretary readily available and capable of
acting, by or to any assistant or acting Secretary or, if there is no assistant
or acting secretary readily available and capable of acting, by or to any
officer of the Company authorised generally or specially in that behalf by the
Directors: Provided that any provision of the Acts or these Articles requiring
or authorising a thing to be done by or to a Director and the Secretary shall
not be satisfied by its being done by or to the same person acting both as a
Director and as, or in the place of, the Secretary.
PART XIX - THE SEAL
101. Use of Seal.
The Directors shall ensure that the Seal (including any official securities seal
kept pursuant to the Acts) shall be used only by the authority of the Directors
or of a committee authorised by the Directors.
102. Seal for use abroad.
The Company may exercise the powers conferred by the Acts with regard to having
an official seal for use abroad and such powers shall be vested in the
Directors.
103. Signature of sealed instruments.
Every instrument to which the Seal shall be affixed shall be signed by a
Director and shall also be signed by the Secretary or by a second Director or by
some other person appointed by the Directors for the purpose save that as
regards any certificates for shares or debentures or other securities of the
Company the Directors may determine by resolution, either generally or in any
particular case and subject to such restrictions as the Directors may determine,
that such signatures or either of them shall be dispensed with, or be printed
thereon or affixed thereto by some method or system of mechanical signature.
PART XX - DIVIDENDS AND RESERVES
104. Declaration of dividends.
Subject to the provisions of the Acts, the Company by ordinary resolution may
declare dividends in accordance with the respective rights of the members, but
no dividend shall exceed the amount recommended by the Directors.
105. Interim and fixed dividends.
Subject to the provisions of the Acts, the Directors may declare and pay interim
dividends if it appears to them that they are justified by the profits of the
Company available for distribution. If the share capital is divided into
different classes, the Directors may declare and pay interim dividends on shares
which confer deferred or non-preferred rights with regard to dividend as well as
on shares which confer preferential rights with regard to dividend, but subject
always to any restrictions for the time being in force (whether under these
Articles, under the terms of issue of any shares or under any agreement to which
the Company is a party, or otherwise) relating to the application, or the
priority of application, of the Company's profits available for distribution or
to the declaration or as the case may be the payment of dividends by the
Company. Subject as aforesaid, the Directors may also pay at intervals settled
by them any dividend payable at a fixed rate if it appears to them that the
profits available for distribution justify the payment. Provided the Directors
act in good faith they shall not incur any liability to the Holders of shares
conferring preferred rights for any loss they may suffer by the lawful payment
of an interim dividend on any shares having deferred or non-preferred rights.
106. Payment of dividends.
(a) Except as otherwise provided by the rights attached to shares, all
dividends shall be declared and paid according to the amounts paid up or
credited as paid up on the shares on which the dividend is paid. Subject as
aforesaid, all dividends shall be apportioned and paid proportionately to
the amounts paid or credited as paid on the shares during any portion or
portions of the period in respect of which the dividend is paid; but, if
any share is issued on terms providing that it shall rank for dividend as
from a particular date, such share shall rank for dividend accordingly. For
the purposes of this Article, no amount paid on a share in advance of calls
shall be treated as paid on a share.
(b) If several persons are registered as joint Holders of any share, any one of
them may give effectual receipts for any dividend or other moneys payable
on or in respect of the share.
107. Deductions from dividends.
The Directors may deduct from any dividend or other moneys payable to any member
in respect of a share any moneys presently payable by him to the Company in
respect of that share.
108. Dividends in specie.
A general meeting declaring a dividend or bonus may direct, upon the
recommendation of the Directors, that it shall be satisfied wholly or partly by
the distribution of assets (and, in particular, of paid up shares, debentures or
debenture stock of any other company or in any one or more of such ways) and the
Directors shall give effect to such resolution. Where any difficulty arises in
regard to the distribution, the Directors may settle the same as they think
expedient and in particular may issue fractional certificates and fix the value
for distribution of such specific assets or any part thereof in order to adjust
the rights of all the parties and may determine that cash payments shall be made
to any members upon the footing of the value so fixed and may vest any such
specific assets in trustees upon trust for the persons entitled to the dividend
as the Directors think expedient, and generally may make such arrangements for
the allotment, acceptance and sale of such specified assets or fractional
certificates, or any part thereof, and otherwise as they think fit.
109. Method of payment of dividends.
Any dividend or other moneys payable in respect of any share may be paid by
cheque or warrant sent by post, at the risk of the person or persons entitled
thereto, to the registered address of the Holder or, where there are joint
Holders, to the registered address of that one of the joint Holders who is first
named on the Register or to such person and to such address as the Holder or
joint Holders may in writing direct. Every such cheque or warrant shall be made
payable to the order of the person to whom it is sent and payment of the cheque
or warrant shall be a good discharge to the Company. Any joint Holder or other
person jointly entitled to a share as aforesaid may give receipts for any
dividend or other moneys payable in respect of the share. For the avoidance of
doubt, a dividend may be paid by the Company by way of a cheque which is crossed
or which indicates by an appropriate means that the cheque shall be lodged only
to the account of the payee. The Directors may also, in circumstances which they
consider appropriate, arrange for payment of dividends by electronic funds
transfer, bank transfer or by any other method selected by the Directors from
time to time and in such event the debiting of the Company's account in respect
of the appropriate amount shall be deemed a good discharge of the Company's
obligations in respect of any payment made by any such methods.
110. Dividends not to bear interest.
No dividend or other moneys payable in respect of a share shall bear interest
against the Company unless otherwise provided by the rights attached to the
share.
111. Payment to Holders on a particular date.
Any resolution declaring a dividend on shares of any class, whether a resolution
of the Company in general meeting or a resolution of the Directors, may specify
that the same may be payable to the persons registered as the Holders of such
shares at the close of business on a particular date, notwithstanding that it
may be a date prior or subsequent to that on which the resolution is passed, and
thereupon the dividend shall be payable to them in accordance with their
respective holdings so registered, but without prejudice to the rights inter se
of transferors and transferees of any such shares in respect of such dividend.
The provisions of this Article shall apply, mutatis mutandis, to distributions
and any allotment or issue of shares or other securities or any grant of any
other entitlement to be effected in pursuance of these Articles. Any dividend,
interest or other sum payable which remains unclaimed for one year after having
been declared may be invested or otherwise made use of by the Directors for the
benefit of the Company until claimed.
112. Unclaimed dividends.
If the Directors so resolve, any dividend which has remained unclaimed for
twelve years from the date of its declaration shall be forfeited and cease to
remain owing by the Company. The payment by the Directors of any unclaimed
dividend or other moneys payable in respect of a share into a separate account
shall not constitute the Company a trustee in respect thereof.
113. Reserves.
Before recommending any dividend, whether preferential or otherwise, the
Directors may carry to reserve out of the profits of the Company such sums as
they think proper. All sums standing to reserve may be applied from time to time
in the discretion of the Directors for any purpose to which the profits of the
Company may be properly applied and at the like discretion may be either
employed in the business of the Company or invested in such investments as the
Directors may lawfully determine. The Directors may divide the reserve into such
special funds as they think fit and may consolidate into one fund any special
funds or any parts of any special funds into which the reserve may have been
divided as they may lawfully determine. Any sum which the Directors may carry to
reserve out of the unrealised profits of the Company shall not be mixed with any
reserve to which profits available for distribution have been carried. The
Directors may also carry forward, without placing the same to reserve, any
profits which they may think it prudent not to divide.
PART XXI - ACCOUNTS
114. Accounts.
(a) The Directors shall cause proper books of account to be kept relating to:-
(i) all sums of money received and expended by the Company and the matters
in respect of which the receipt and expenditure takes place; and
(ii) all sales and purchases of goods by the Company; and
(iii) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such books of
account as are necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
(b) The books of account shall be kept at the Office or, subject to the
provisions of the Acts, at such other place as the Directors think fit and
shall be open at all reasonable times to the inspection of the Directors.
(c) The Directors shall determine from time to time whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the
inspection of members, not being Directors. No member (not being a
Director) shall have any right of inspecting any account or book or
document of the Company except as conferred by the Acts or authorised by
the Directors or by the Company in general meeting.
(d) In accordance with the provisions of the Acts, the Directors shall cause to
be prepared and to be laid before the annual general meeting of the Company
from time to time such profit and loss accounts, balance sheets, group
accounts and reports as are required by the Acts to be prepared and laid
before such meeting.
(e) A copy of every balance sheet (including every document required by law to
be annexed thereto) which is to be laid before the annual general meeting
of the Company together with a copy of the Directors' report and Auditors'
report shall be sent, not less than twenty-one Clear Days before the date
of the annual general meeting, to every person entitled under the
provisions of the Acts to receive them; and the required number of copies
of these documents shall be forwarded at the same time to the appropriate
section of The Stock Exchange.
(f) Auditors shall be appointed and their duties regulated in accordance with
the Acts.
PART XXII - CAPITALISATION OF PROFITS OR RESERVES
115. Capitalisation of distributable profits and reserves.
The Directors may resolve that any sum for the time being standing to the credit
of any of the Company's reserves (including any capital redemption reserve fund
or share premium account) or to the credit of the profit and loss account be
capitalised and applied on behalf of the members who would have been entitled to
receive that sum if it had been distributed by way of dividend and in the same
proportions either in or towards paying up amounts for the time being unpaid on
any shares held by them respectively, or in paying up in full unissued shares or
debentures of the Company of a nominal amount equal to the sum capitalised (such
shares or debentures to be allotted and distributed credited as fully paid up to
and amongst such Holders in the proportions aforesaid) or partly in one way and
partly in another, so, however, that the only purposes for which sums standing
to the credit of the capital redemption reserve fund or the share premium
account shall be applied shall be those permitted by the Acts.
116. Capitalisation of non-distributable profits and reserves.
The Directors may resolve that it is desirable to capitalise any part of the
amount for the time being standing to the credit of any of the Company's reserve
accounts or to the credit of the profit and loss account which is not available
for distribution by applying such sum in paying up in full unissued shares to be
allotted as fully paid bonus shares to those members of the Company who would
have been entitled to that sum if it were distributable and had been distributed
by way of dividend (and in the same proportions) and the Directors shall give
effect to such resolution.
117. Implementation of capitalisation issues.
Whenever such a resolution is passed in pursuance of either of the two
immediately preceding Articles the Directors shall make all appropriations and
applications of the undivided profits resolved to be capitalised thereby and all
allotments and issues of fully paid shares or debentures, if any, and generally
shall do all acts and things required to give effect thereto with full power to
the Directors to make such provisions as they shall think fit for the case of
shares or debentures becoming distributable in fractions (and, in particular,
without prejudice to the generality of the foregoing, either to disregard such
fractions or to sell the shares or debentures represented by such fractions and
distribute the net proceeds of such sale to and for the benefit of the Company
or to and for the benefit of the members otherwise entitled to such fractions in
due proportions) and to authorise any person to enter on behalf of all the
members concerned into an agreement with the Company providing for the allotment
to them respectively, credited as fully paid up, of any further shares or
debentures to which they may become entitled on such capitalisation or, as the
case may require, for the payment up by the application thereto of their
respective proportions of the profits resolved to be capitalised of the amounts
remaining unpaid on their existing shares and any agreement made under such
authority shall be binding on all such members.
PART XXIII - NOTICES
118. Notices in writing.
Any notice to be given, served or delivered pursuant to these Articles shall be
in writing.
119. Service of notices.
(a) A notice or document (including a share certificate) to be given, served or
delivered in pursuance of these Articles may be given to, served on or
delivered to any member by the Company:
(i) by handing same to him or his authorised agent;
(ii) by leaving the same at his registered address; or
(iii)by sending the same by the post in a pre-paid cover addressed to him
at his registered address.
(b) Where a notice or document is given, served or delivered pursuant to
sub-paragraph (a) (i) or (ii) of this Article, the giving, service or
delivery thereof shall be deemed to have been effected at the time the same
was handed to the member or his authorised agent, or left at his registered
address (as the case may be).
(c) Where a notice or document is given, served or delivered pursuant to
sub-paragraph (a) (iii) of this Article, the giving, service or delivery
thereof shall be deemed to have been effected at the expiration of
twenty-four hours after the cover containing it was posted. In proving
service or delivery it shall be sufficient to prove that such cover was
properly addressed, stamped and posted.
(d) Every legal personal representative, committee, receiver, curator bonis or
other legal curator, assignee in bankruptcy or liquidator of a member shall
be bound by a notice given as aforesaid if sent to the last registered
address of such member, notwithstanding that the Company may have notice of
the death, lunacy, bankruptcy, liquidation or disability of such member.
120. Service on joint Holders.
A notice may be given by the Company to the joint Holders of a share by giving
the notice to the joint Holder whose name stands first in the Register in
respect of the share and notice so given shall be sufficient notice to all the
joint Holders.
121. Service on transfer or transmission of shares.
(a) Every person who becomes entitled to a share shall be bound by any notice
in respect of that share which, before his name is entered in the Register
in respect of the share, has been duly given to a person from whom he
derives his title provided that the provisions of this paragraph shall not
apply to any notice served under Article 66 unless, under the provisions of
Article 66(b), it is a notice which continues to have effect
notwithstanding the registration of a transfer of the shares to which it
relates.
(b) A notice may be given by the Company to the persons entitled to a share in
consequence of the death or bankruptcy of a member by sending or delivering
it, in any manner authorised by these Articles for the giving of notice to
a member, addressed to them at the address, if any, supplied by them for
that purpose. Until such an address has been supplied, a notice may be
given in any manner in which it might have been given if the death or
bankruptcy had not occurred.
122. Signature to notices.
The signature to any notice to be given by the Company may be written or
printed.
123. Deemed receipt of notices.
A member present, either in person or by proxy, at any meeting of the Company or
the Holders of any class of shares in the Company shall be deemed to have
received notice of the meeting and, where requisite, of the purposes for which
it was called.
PART XXIV - WINDING UP
124. Distribution on winding up.
If the Company shall be wound up and the assets available for distribution among
the members as such shall be insufficient to repay the whole of the paid up or
credited as paid up share capital, such assets shall be distributed so that, as
nearly as may be, the losses shall be borne by the members in proportion to the
capital paid up or credited as paid up at the commencement of the winding up on
the shares held by them respectively. And if in a winding up the assets
available for distribution among the members shall be more than sufficient to
repay the whole of the share capital paid up or credited as paid up at the
commencement of the winding up, the excess shall be distributed among the
members in proportion to the capital at the commencement of the winding up paid
up or credited as paid up on the said shares held by them respectively. Provided
that this Article shall not affect the rights of the Holders of shares issued
upon special terms and conditions.
125. Distribution in specie.
If the Company is wound up, the liquidator, with the sanction of a special
resolution of the Company and any other sanction required by the Acts, may
divide among the members in specie or kind the whole or any part of the assets
of the Company (whether they shall consist of property of the same kind or not)
and, for such purpose, may value any assets and determine how the division shall
be carried out as between the members or different classes of members. The
liquidator, with the like sanction, may vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories as,
with the like sanction, he determines, but so that no member shall be compelled
to accept any assets upon which there is a liability.
PART XXV - MISCELLANEOUS
126. Minutes of meetings.
The Directors shall cause minutes to be made of the following matters, namely :-
(a) of all appointments of officers and committees made by the Directors and of
their salary or remuneration;
(b) of the names of Directors present at each meeting of the Directors and of
the names of any Directors and of all other members thereof present at each
meeting of any committee appointed by the Directors; and
(c) of all resolutions and proceedings of all meetings of the Company and of
the Holders of any class of shares in the Company and of the Directors and
of committees appointed by the Directors.
Any such minute as aforesaid, if purporting to be signed by the chairman of the
meeting at which the proceedings were had, or by the chairman of the next
succeeding meeting, shall be receivable as prima facie evidence of the matters
stated in such minute without any further proof.
127. Inspection and secrecy.
The Directors shall determine from time to time whether and to what extent and
at what times and places and under what conditions or regulations the accounts
and books of the Company or any of them shall be open to the inspection of
members, not being Directors, and no member (not being a Director) shall have
any right of inspecting any account or book or document of the Company except as
conferred by the Acts or authorised by the Directors or by the Company in
general meeting. No member shall be entitled to require discovery of or any
information respecting any detail of the Company's trading, or any matter which
is or may be in the nature of a trade secret, mystery of trade, or secret
process which may relate to the conduct of the business of the Company and which
in the opinion of the Directors it would be inexpedient in the interests of the
members of the Company to communicate to the public.
128. Destruction of records.
The Company shall be entitled to destroy all instruments of transfer which have
been registered at any time after the expiration of six years from the date of
registration thereof, all notifications of change of address at any time after
the expiration of two years from the date of recording thereof and all share
certificates and dividend mandates which have been cancelled or ceased to have
effect at any time after the expiration of one year from the date of such
cancellation or cessation. It shall be presumed conclusively in favour of the
Company that every entry in the Register purporting to have been made on the
basis of an instrument of transfer or other document so destroyed was duly and
properly made and every instrument duly and properly registered and every share
certificate so destroyed was a valid and effective document duly and properly
cancelled and every other document hereinbefore mentioned so destroyed was a
valid and effective document in accordance with the recorded particulars thereof
in the books or records of the Company. Provided always that:-
(a) the provision aforesaid shall apply only to the destruction of a document
in good faith and without notice of any claim (regardless of the parties
thereto) to which the document might be relevant;
(b) nothing herein contained shall be construed as imposing upon the Company
any liability in respect of the destruction of any document earlier than as
aforesaid or in any other circumstances which would not attach to the
Company in the absence of this Article; and
(c) references herein to the destruction of any document include references to
the disposal thereof in any manner.
129. Untraced shareholders.
(a) The Company shall be entitled to sell at the best price reasonably
obtainable any share of a Holder or any share to which a person is entitled
by transmission if and provided that:-
(i) for a period of twelve years no cheque or warrant sent by the Company
through the post in a pre-paid letter addressed to the Holder or to
the person entitled by transmission to the share at his address on the
Register or at the last known address given by the Holder or the
person entitled by transmission as that to which cheques and warrants
are to be sent has been cashed and no communication has been received
by the Company from the Holder or the person entitled by transmission
(provided that during such twelve year period at least three dividends
shall have become payable in respect of such share);
(ii) at the expiration of the said period of twelve years by advertisement
in a national daily newspaper published in the State and in a
newspaper circulating in the area in which the address referred to in
sub-paragraph (a) (i) of this Article is located the Company has given
notice of its intention to sell such share;
(iii)during the further period of three months after the date of the
advertisement and prior to the exercise of the power of sale the
Company has not received any communication from the Holder or person
entitled by transmission; and
(iv) the Company has first given notice in writing of its intention to sell
such shares to the appropriate section of every stock exchange or
securities market on which shares of the relevant class are for the
time dealt in or quoted.
(b) To give effect to any such sale the Company may appoint any person to
execute as transferor an instrument of transfer of such share and such
instrument of transfer shall be as effective as if it had been executed by
the Holder or the person entitled by the transmission to such share. The
transferee shall be entered in the Register as the Holder of the shares
comprised in any such transfer and he shall not be bound to see to the
application of the purchase moneys nor shall his title to the shares be
affected by any irregularity in or invalidity of the proceedings in
reference to the sale.
(c) The Company shall account to the Holder or other person entitled to such
share for the net proceeds of such sale by carrying all moneys in respect
thereof to a separate account which shall be a permanent debt of the
Company and the Company shall be deemed to be a debtor and not a trustee in
respect thereof for such Holder or other person. Moneys carried to such
separate account may be either employed in the business of the Company or
invested in such investments as the Directors may think fit, from time to
time.
130. Indemnity.
Subject to the provisions of and so far as may be admitted by the Acts, but
without prejudice to any indemnity to which he or they may otherwise be
entitled, every Director and other officer of the Company and the Auditors shall
be indemnified out of the assets of the Company against any liability, loss or
expenditure incurred by him or them in the execution or discharge of his or
their duties or the exercise of his or their powers or otherwise in relation to
or in connection with his or their duties, powers or office including (without
prejudice to the generality of the foregoing) any liability incurred by him or
them in defending any proceedings, whether civil or criminal, which relate to
anything done or omitted to be done or alleged to have been done or omitted to
be done by him or them as officers or employees of the Company and in which
judgment is given in his or their favour or in which he or they are acquitted or
which are otherwise disposed of without any finding or admission of guilt or
breach of duty on his or their part, or incurred by him or them in connection
with any application under any statute for relief from liability in respect of
any such act or omission in which relief is granted to him or them by the Court.
To the extent permitted by law, the Directors may arrange insurance cover at the
cost of the Company in respect of any liability, loss or expenditure incurred by
any Director, officer or the Auditors of the Company in relation to anything
done or alleged to have been done or omitted to be done by him or them as
Director, officer or Auditors.
