FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Special Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of January 2003 (November 8, 2002)
British Sky Broadcasting Group plc
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(Name of Registrant)
Grant Way, Isleworth, Middlesex, TW7 5QD England
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(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover Form 20-F or Form 40-F
Form 20-F X Form 40-F
----- -----
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934
Yes No X
----- -----
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): Not Applicable.
This Special Report is incorporated by reference in the prospectus contained in
Registration Statement No. 333-08246 filed by the Registrant under the
Securities Act of 1933.
Annexed hereto as Exhibit A are the amended Memorandum and Articles of
Association of British Sky Broadcasting Group plc ("BSkyB"), as approved at
BSkyB's Annual General Meeting on November 8, 2002.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BRITISH SKY BROADCASTING GROUP PLC
Date: January 29, 2003 By: /s/ Dave Gormley
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Dave Gormley
Company Secretary
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EXHIBIT INDEX
Page No. in Sequential
Exhibit Numbering System
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A. Memorandum and Articles of Association
of British Sky Broadcasting Group plc 5
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EXHIBIT A
THE COMPANIES ACT 1985
MEMORANDUM OF ASSOCIATION OF
BRITISH SKY BROADCASTING GROUP PLC
1. The name of the Company is "BRITISH SKY BROADCASTING GROUP plc"1
2. The Company is to be a public company.
3. The Company's registered office is to be situated in England and Wales.
4. The Company's objects are:
(A) To establish and carry on the business of direct broadcasting by
satellite including but not limited to:
(1) the provision of facilities for direct broadcasting by
satellite for reception in the United Kingdom;
(2) the provision of television programming by direct broadcasting
by satellite for reception in the United Kingdom;
(3) the provision in the United Kingdom of teletext transmissions
(as defined in the Broadcasting Act 1981), data transmissions
and all other services involving the use of broadcast
satellite frequencies for the United Kingdom;
(4) the production and acquisition of programmes and programming
for direct broadcasting by satellite and the marketing and
exploitation by whatever means of all and any rights, goods
and services acquired by the Company in or in connection with
any such programme or programming, including the manufacture,
production, purchase, sale, lease, licensing or other turning
to account in any manner of merchandise, goods and services of
all kinds for the purposes of such exploitation;
(5) the publication and/or turning to account in any manner
whatsoever of all material whatsoever relating to the
programming or data broadcast by the Company or to the
technology owned or used by the Company for the purposes of
its business; and
(6) entering into any requisite contracts with the Independent
Broadcasting Authority or any successor to such authority and
complying with the terms thereof.
(B) To carry on business as programme contractors, owners, managers and
operators of television and sound broadcasting stations and studios,
theatres and cinemas and as makers, directors, producers and
distributors of television,
------------
1 Name changed to BSB Limited on 11th August 1988.
Name changed to British Satellite Broadcasting Limited on 1st April 1990.
Name changed to British Sky Broadcasting Limited on 19th December 1990.
Name changed to British Sky Broadcasting Group Limited by special
resolution dated 30th June 1994.
Name changed to British Sky Broadcasting Group plc by special resolution
dated 4th November 1994.
1
sound radio, cinematograph and stage plays, performances,
advertisements and programmes of all forms and descriptions and of
any other form of public or private entertainment.
(C) To purchase or otherwise acquire copyright, including film,
television, radio, video tapes and video discs and all other rights
of and in any literary, dramatic, musical, theatrical, artistic,
cinemategraphic, choreographic, phonographic, photographic and other
works, sporting and other events and subjects and matters of all
descriptions, and to enter into engagements with authors,
dramatists, script writers, composers, musicians, actors, artists,
journalists, sportsmen, sports promoters, commentators, electrical,
electronic and mechanical and recording engineers of any description
and other persons for the purpose of making, recording, or otherwise
producing photographic or cinematographic records, pictures or
films, and for the production and representation or recording or
reproduction of scenarios, films, plays, photographs, stage plays,
television plays, radio plays, operas, pantomimes, songs, ballets,
concerts, exhibitions, variety entertainments, musical instructive
or illustrational performances and entertainments and amusements of
any kind and description.
(D) To carry out research, investigations and experimental work of every
description in relation to the space satellite, cable television,
telecommunication, electronic, electrical, television, film, sound
and video industries.
(E) To purchase or otherwise acquire, hire, take on lease or licence,
produce, manufacture, develop, experiment with, improve, convert,
adapt, sell, operate, let out on hire, use, or otherwise deal in,
equipment and apparatus of all sorts and descriptions whatever
connected with television and radio, including but not limited to
satellites, radio and television equipment for studios, studios or
studio facilities, transmission, receiving outside broadcasting,
public address systems, television and radio relay and recording.
(F) To exploit and turn to account all property, rights and privileges
of the Company.
(G) To carry on any other trade or business whatsoever which can in the
opinion of the company be advantageously carried on by the Company
in connection with or auxiliary to the general business of the
Company or which is calculated directly or indirectly to enhance the
value of or facilitate the realisation of any property or rights of
the Company.
(H) To apply for, promote, acquire and hold any charter, Act of
Parliament monopoly of rights, privileges, licences, concessions or
other rights from any sovereign government, government department,
provincial or local authority, corporation or body in any part of
the world or enter into arrangements with any such body as may be
necessary or desirable for furthering the objects of the Company, or
far extending any of the powers of the Company or for affecting any
modification of the constitution of the Company or for any other
purpose which may seem to the Company to be expedient, and to oppose
any proceedings or applications which may seem calculated directly
or indirectly to prejudice the interests of the Company.
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(I) To carry out such operations or deal with such goods and to purchase
or otherwise acquire, take options over, construct, lease, hold,
manage, maintain, alter, develop, exchange or deal with such
property, rights or privileges (including the whole or part of the
business, property or liabilities of any other person or company) as
may seem to the Company directly or indirectly to advance the
interests of the Company.
(J) To enter into such commercial or other transactions in connection
with any trade or business of the Company as may seem desirable to
the Company for the purpose of the Company's affairs.
(K) To enter into contracts, agreements and arrangements with any person
or company and to promote or procure the incorporation of any other
company for the carrying out by such other person or company on
behalf of the Company of any of the objects for which the Company is
formed.
(L) To apply for, purchase or otherwise acquire, protect, maintain and
renew any patents, patent rights, trade marks, designs, licences and
other intellectual property rights of all kinds or any secret or
other information as to any invention and to use, exercise, develop
or grant licences in respect of, or otherwise turn to account the
property, rights or information so acquired and to experiment with
any such rights which the Company may propose to acquire.
(M) To invest and deal with the moneys of the Company not immediately
required in any manner and hold and deal with any investment so
made.
(N) To pay or to provide or to make such arrangements for providing such
gratuities, pensions, benefits, share option and acquisition
schemes, loans and other matters and to establish, support,
subsidise and subscribe to any institutions, associations, clubs,
schemes, finds or trusts (whether to or for the benefit of present
or past Directors or employees of the Company or its predecessors in
business or of any company which is a subsidiary company of the
Company or is allied to or associated or connected with the Company
or with any such subsidiary company or to or for the benefit of
persons who are or were related to or connected with or dependents
of any such Directors or employees) as may seem to the Company
directly or indirectly to advance the interests of the Company.
(O) To draw, make, accept, indorse, discount, negotiate, execute and
issue promissory notes, bills of exchange, bills of lading,
warrants, debentures and other negotiable and transferable
instruments.
(P) To act as agents, brokers or trustees, and to enter into such
arrangements (whether by way of amalgamation, partnership, profit
sharing, union of interests, co-operation, joint venture or
otherwise) with other persons or companies as may seem to the
company to advance the interests of the Company and to vest any
property of the Company in any person or company on behalf of the
Company and with or without any declaration of trust in favour of
the Company.
(Q) To sell, lease, dispose of, grant rights over or otherwise deal with
the undertaking, property or assets of the Company or any part
thereof on such
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terms as the Company may decide, and to distribute any property or
assets of the Company of whatever kind in specie among the members
of the Company.
(R) To pay for any rights or property acquired by the Company and to
remunerate any person or company, whether by cash payment or by the
allotment of shares, debentures or other securities of the Company
credited as paid up in full or in part, or by any other method the
Company may think fit.
(S) To establish or promote companies and to place or guarantee the
placing of, underwrite, subscribe for or otherwise acquire, hold,
dispose of and deal with, and guarantee the payment of interest,
dividends and capital on, all or any of the shares, debentures,
debenture stock or other securities or obligations of any company or
association and to pay or provide for brokerage, commission and
underwriting in respect of any such issue upon such terms as the
Company may decide.
(T) To co-ordinate, finance and manage all or any part of the operations
of any company which is a subsidiary company of or otherwise under
the control of the Company and generally to carry on the business of
a holding company.
(U) To carry on through any subsidiary or associated company any
activities which the Company is authorised to carry on and to make
any arrangements whatsoever with such company (including any
arrangements for taking the profits or bearing the losses of any
such activities) as the Company may think fit.
(V) To raise or borrow money in such manner as the Company may think fit
and to receive deposits and to mortgage, charge, pledge or give
liens or other security over the whole or any part of the Company's
undertaking, property and assets (whether present or future),
including its uncalled capital, for such purposes and in such
circumstances and upon such terms and conditions as the Company may
think fit.
(W) To lend or advance money and to give credit and to enter (whether
gratuitously or otherwise) into guarantees or indemnities of all
kinds, whether secured or unsecured, and whether in respect of the
obligations of the Company or those of some other person or company,
in such circumstances and upon such terms and conditions as the
Company may think fit.
(X) Subject to and in accordance with due compliance with the provisions
of Section 155 to 158 (inclusive) of the Act (if and so far as such
provisions shall be applicable), to give, whether directly or
indirectly, any kind of financial assistance (as defined in Section
152(1)(a) of the Act) for any such purpose as is specified in
Section 151(2) and/or Section 151(2) of the Act.
(Y) To pay or agree to pay all or any of the promotion, formation and
registration expenses of the Company.
(Z) To contribute to or support any public, general, political,
charitable, benevolent or useful object, which it may seem to the
company to be in the interests of the Company or its members to
contribute to or support.
(AA) To carry on business as a general commercial company.
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(BB) To do all or any of the above things in any part of the world or in
space whether as principals or agents or trustees or otherwise,
either alone or jointly with others and either by or through agents,
subcontractors, trustees or otherwise.
(CC) To do all such other things as may be considered by the Company to
further the interests of the Company or to be incidental or
conducive to the attainment of the above objects or any of them.
And it is hereby declared that (a) the objects set forth in each
subclause of this clause shall not be restrictively construed but
the widest interpretation shall be given thereto, (b) the word
"company" in this clause, except where used in reference to the
Company, shall be deemed to include any partnership or other body of
persons, whether corporate or unincorporated and whether domiciled
in the United Kingdom or elsewhere, and (c) except where the context
expressly so requires, none of the several paragraphs of this
clause, or the objects therein specified, or the powers thereby
conferred shall be limited by, or be deemed merely subsidiary or
auxiliary to, any other paragraph of this clause, or the objects in
such other paragraph specified, or the powers thereby conferred; and
(d) the expression "the Act" means the Companies Act 1985, but so
that any reference in this clause to any provision of the Act shall
be deemed to include a reference to any statutory modification or
re-enactment of that provision for the time being in force.
5. The liability of the Members is limited.
6. The Company's share capital is Pound Sterling1,000 divided into 1,000
shares of Pound Sterling1 each.2
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2 By a resolution passed by the Company on 29th March 1990 the share capital
of the Company was increased to pounds sterling 120,000,000.
By a resolution passed by the Company on 17th April 1990 the share capital
of the Company was increased to pounds sterling 120,000,002.
By a resolution passed by the Company on 14th November 1990 the share
capital of the Company was increased to pounds sterling 240,000,004.
By a resolution passed by the Company on 11th May 1991 the share capital
of the Company was increased to pounds sterling 240,099,604.
By a resolution passed by the Company on 18th November 1993 the share
capital of the Company was increased to pounds sterling 240,123,604.
By a resolution passed by the Company on 8th September 1994 the share
capital of the Company was increased to pounds sterling 1,784,554,733.
By a resolution passed by the Company on 8th September 1994 and confirmed
by the Court on 12th October 1994 the share capital of the Company was
reduced to pounds sterling 240,123,604.
By a resolution passed by the Company on 22nd November 1994 the share
capital of the Company was increased to pounds sterling 454,123,604.
By a resolution passed by the Company on 24th November 1994 and which
became effective on 15th December 1994 the share capital of the Company
was increased to pounds sterling l,500,000,000.
5
ARTICLES OF ASSOCIATION
OF
BRITISH SKY BROADCASTING GROUP
PUBLIC LIMITED COMPANY
(adopted by special resolution passed on [ November 8, ] 2002)
PRELIMINARY
1. (1) In these articles the following words bear the following meanings:
"the Act" subject to paragraph (4) of this article, the Companies
Act 1985;
"address" in relation to electronic communications, includes any
number or address used for the purposes of such communications;
"these articles" the articles for the time being of the Company;
"Broadcasting Act" the Broadcasting Act 1990 including any
supplementary legislation, Orders or Statutory Instruments enacted
pursuant thereto;
"BSBH" BSB Holdings Limited and/or any of its subsidiaries;
"clear days" in relation to the period of a notice, that period
excluding the day when the notice is given or deemed to be given and
the day for which it is given or on which it is to take effect;
"Daily Official List" the daily official list of the London Stock
Exchange;
"electronic communication" means the same as in the Electronic
Communications Act 2000;
"Excess Shares" the Specified Shares (or any interest therein) which
are required to be disposed of under a Mandated Disposal;
"executed" any mode of execution;
"Granada" Granada Group PLC and/or any of its subsidiaries;
"holder" in relation to shares, the member whose name is entered in
the register of members as the holder of the shares;
"ITC" the Independent Television Commission established pursuant to
section 1 of the Broadcasting Act or such other successor body as
may be appointed from time to time to exercise all or any of the
powers of such body under the Broadcasting Act;
"Licence" a licence to provide a non-domestic satellite service or
any other service under the Broadcasting Act;
"Licence Holder" a person who has been:
1
(i) granted a Licence by the ITC which Licence (including any
renewal or extension thereof) has not been terminated or
revoked; or
(ii) awarded, but not yet granted a Licence by the ITC and such
award has not been revoked;
"London Stock Exchange" London Stock Exchange plc;
"Mandated Disposal" the sale or other transfer of Specified Shares
(or any interest therein) pursuant to Article 46;
"News" The News Corporation Limited and/or any of its subsidiaries;
"Office" the registered office of the Company from time to time;
"Pathe" Pathe and/or any of its subsidiaries;
"Principal Shareholders" all or any of News, BSBH, Pathe and Granada
and Principal Shareholder shall be construed accordingly;
"recognised person" a recognised clearing house or a nominee of a
recognised clearing house or of a recognised investment exchange who
is designated within the meaning of section 185(4) of the Act;
"Relevant Interest" any interest (which either alone or when taken
with any other interest or interests) in shares in the Company
(including any interest attributed by the directors pursuant to the
definition of "Relevant Investor" below) as a result of which (a)
the Company or any subsidiary would become a disqualified person in
relation to any Licence held by it (or awarded, but not yet granted,
to it) by virtue of Part II of Schedule 2 to the Broadcasting Act,
(b) there would be a breach of, or failure to comply with, any
requirements or conditions imposed by or under section 5 and/or
Parts III, IV or V of Schedule 2 to the Broadcasting Act, in
relation to any Licence of the Company or any subsidiary to which
those requirements apply, by the Company or any subsidiary or any
other person, (c) the ITC may refine to grant or may revoke a
Licence to the Company or any subsidiary under the Broadcasting Act
or (d) the Company or any subsidiary would otherwise be materially
adversely affected in relation to any Licence held by (or awarded,
but not yet granted, to) it;
"Relevant Investor" any person who, as a result of the transfer to
him of any shares, (a) has a Relevant Interest unless, in any such
case, the ITC has given its consent in writing to the Company or any
subsidiary to the existence or continuance of the circumstance or
circumstances which cause (or would have caused if such consent had
not been given) the person to be or to become a Relevant Investor
and (i) such consent has not been withdrawn and (ii) there has not
been any change in any circumstance which would be relevant to the
ITC in considering whether to withdraw its consent or (b) is
determined by the directors, following consultation with the ITC, to
have an interest in shares in the Company which may cause the ITC to
vary, revoke, determine or refuse to award, grant, renew or extend a
Licence to or of the Company or any subsidiary. Without prejudice to
the generality of the foregoing, for the purpose of determining
whether any person is a Relevant Investor as a result
2
of the transfer to him of any shares, the directors may attribute to
such person and aggregate with the interests in issued shares of
such person (a) any interest which would be taken into account in
deciding whether a notification to the Company would be required
under Part VI of the Act on the assumption that the interests
referred to in section 209(1) of the Act are not disregarded, (b)
any shares which are, in the opinion of the directors, the subject
of an agreement or arrangement (whether legally enforceable or not)
whereby such shares are to be voted in accordance-with that person's
instructions (whether given by him directly or through any other
person) and (c) any interest of any associate of such person or any
person controlled by or connected with such person provided that in
any case no person who was a member or the holding company or a
subsidiary of a member (or any subsidiary of such a holding company)
at the date of the adoption of these articles shall be a Relevant
Investor in respect of the shares held by him on such date;
"seal" the common seal (if any) of the Company and an official seal
(if any) kept by the Company by virtue of section 40 of the Act, or
either of them as the case may require;
"secretary" the secretary of the Company or any other person
appointed to perform the duties of the secretary of the Company,
including a joint, assistant or deputy secretary;
"Specified Shares" shares in the issued capital of the Company which
have been transferred to a member and which are comprised in the
interest of a Relevant Investor;
"Subsidiary" for the purposes only of the definitions of "News",
"Pathe", "Granada" and "BSBH", and the proviso to the definition of
"Relevant Investor", in relation to an undertaking (the "holding
undertaking"), any other undertaking in which the holding
undertaking (or persons acting on its behalf) from time to time
directly or indirectly holds or controls either:
(a) a majority of the voting rights exerciseable at general
meetings of the members of that undertaking on all, or
substantially all, matters; or
(b) the right to appoint or remove directors having a majority of
the voting rights exerciseable at meetings of the board of
directors of that undertaking on all, or substantially all,
matters,
and any undertaking which is a subsidiary of another undertaking
shall also be a subsidiary of any further undertaking of which that
other is a subsidiary (and "subsidiaries" shall be construed
accordingly);
"Uncertificated Securities Regulations" means subject to paragraph
(4) of this article, the Uncertificated Securities Regulations 2001;
"undertaking" includes a body corporate or partnership or an
unincorporated association carrying on a trade or business with or
without a view to profit (and, in relation to an undertaking which
is not a company, expressions in these articles appropriate to
companies shall be construed as references to the
3
corresponding persons, officers, documents or organs (as the case
may be) appropriate to undertakings of that description).
(2) In these articles references to a share being in uncertificated form
are references to that share being an uncertificated unit of a
security, and references to a share being in certificated form are
references to that share being a certificated unit of a security,
provided that any reference to a share in uncertificated form
applies only to a share of a class which is, for the time being, a
particularly security, and only for so long as it remains a
participating security.
(3) Save as aforesaid and unless the context otherwise requires, words
or expressions contained in these articles bear the same meanings as
in the Act or the Uncertificated Securities Regulations (as the case
may be).
(4) Except where otherwise expressly stated, a reference in these
articles to any statute or provision of a statute includes a
reference to any statutory amendment, modification or re-enactment
of it for the time being in force.
(5) In these articles, unless the context otherwise requires:
(a) words in the singular include the plural, and vice versa;
(b) words importing any gender include all genders; and
(c) a reference to a person includes a reference to a body
corporate (wherever resident or domiciled) and to an
unincorporated body of persons.
(6) In these articles:
(a) references to writing include references to typewriting,
printing, lithography, photography and any other modes of
representing or reproducing words in a legible and
non-transitory form but shall not for the avoidance of doubt
include electronic communications;
(b) references to "other" and "otherwise" shall not be construed
ejusdem generis where a wider construction is possible;
(c) references to a power are to a power of any kind, whether
administrative, discretionary or otherwise; and
(d) references to a committee of the directors are to a committee
established in accordance with these articles, whether or not
comprised wholly of directors.
(7) The headings are inserted for convenience only and do not affect the
construction of these articles.
2. The regulations contained in Table A do not apply to the Company.
4
SHARE CAPITAL
3. The share capital of the Company is Pound Sterling1,500,000,000 divided
into 3,000,000,000 ordinary shares of 50p each.
4. Subject to the provisions of the Act, and without prejudice to any rights
attached to any existing shares, any share may be issued with such rights
or restrictions as the Company may by ordinary resolution determine (or,
insofar as the Company has not so determined, as the directors may
determine).
5. Subject to the provisions of the Act, any share may be issued which is or
is to be liable, to be redeemed at the option of the Company or the holder
on such terms and in such manner as may be provided by these articles.
6. Subject to the provisions of the Act and these articles, the unissued
shares in the Company shall be at the disposal of the directors, who may
offer, allot, grant options over or otherwise dispose of them to such
persons and on such terms as the directors think fit.
7. The Company may exercise the powers of paying commissions or brokerage
conferred or permitted by the Act. Subject to the provisions of the Act,
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.
8. Except as required by law, no person shall be recognised by the Company as
holding any share upon any trust and (except as otherwise provided by
these articles or by law) the Company shall not be bound by or recognise
any interest in any share except an absolute right to the entirety of it
in the holder.
9. Without prejudice to any powers which the Company or the directors may
have to issue, allot, dispose of, convert, or otherwise deal with or make
arrangements in relation to, shares and other securities in any form:
(a) the holding of shares in uncertificated form and the transfer of
title to such shares by means of a relevant system shall be
permitted; and
(b) the Company may issue shares in uncertificated form and may convert
shares from certificated form to uncertificated form and vice versa.
If and to the extent that any provision of these articles is inconsistent
with such holding or transfer as is referred to in paragraph (a) of this
article above or with any provision of the Uncertificated Securities
Regulations, it shall not apply to any share in uncertificated form.
10. Notwithstanding anything else contained in these articles, where any class
of shares is, for the time being, a participating security, unless the
directors otherwise determine, shares of any such class held by the same
holder or joint holder in certificated form and uncertificated form shall
be treated as separate holdings.
VARIATION OF RIGHTS
11. Subject to the provisions of the Act, if at any time the capital of the
Company is divided into different classes of shares, the rights attached
to any class may be varied,
5
either while the Company is a going concern or during or in contemplation
of a winding up:
(a) in such manner (if any) as may be provided by those rights; or
(b) in the absence of any such provision, with the consent of the
holders of three-quarters in nominal value of the issued shares of
that class, (which consent shall be given in writing or, if the
directors so permit, using electronic communications) or with the
sanction of an extraordinary resolution passed at a separate meeting
of the holders of the shares of that class,
but not otherwise. To every such separate meeting the provisions of these
articles relating to general meetings shall apply, except that a poll may
be demanded by any one holder of shares of the class whether present in
person or by proxy and the necessary quorum at any such meeting other than
an adjourned meeting shall be at least two persons together holding or
representing by proxy at least one-third in nominal value of the issued
shares of the class in question and at an adjourned meeting shall be one
person holding shares of the class in question or his proxy.
12. Unless otherwise expressly provided by the rights attached to any class of
shares, those rights:
(a) shall be deemed to be varied by the reduction of the capital paid up
on those shares and by the creation or issue of a further class of
shares ranking in priority for payment of a dividend or in respect
of capital;
(b) shall otherwise be deemed not to be varied by the creation or issue
of further shares ranking pari passu with or subsequent to the
first-mentioned shares; and
(c) shall be deemed not to be varied by the purchase or redemption by
the Company of any of its own shares.
SHARE CERTIFICATES
13. (1) Subject to paragraph (2) of this article, every holder of shares
(other than a recognised person in respect of whom the Company is
not required by law to complete and have ready a certificate) shall
be entitled without payment to one certificate for all the shares of
each class held by him (and, upon transferring a part of his holding
of shares of any class, to a certificate for the balance of that
holding) or, upon payment for every certificate after the first of
such reasonable sum as the directors may determine, to several
certificates each for one or more of his shares. Every certificate
shall be issued under the seal, or bearing an imprint or
representation of the seal or such other form of authentication as
the directors may determine, 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 on them. 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 sufficient delivery to all of them.
(2) Paragraph (1) of this article shall not apply in relation to shares
in uncertificated form.
6
(3) If a share certificate is defaced, worn-out, lost or destroyed, it
may be renewed on such terms (if any) as to evidence and indemnity
and payment of any exceptional expenses incurred by the Company in
investigating evidence 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.
LIEN
14. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all amounts (whether presently payable or
not) payable at a fixed time or called in respect of that share. The
directors 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 amounts (including dividends) payable in respect of it.
15. The Company may sell, in such manner as the directors determine, any share
on which the Company has a lien if an amount in respect of which the lien
exists is presently payable and is not paid within fourteen clear days
after notice has been given to the holder of the share, or the person
entitled to it in consequence of the death or bankruptcy of the holder or
otherwise by operation of law, demanding payment and stating that if the
notice is not complied with the shares may be sold.
16. To give effect to the sale the directors may, in the case of a share in
certificated form, authorise some person to execute an instrument of
transfer of the share sold to, or in accordance with the directions of,
the purchaser, and in the case of a share in uncertificated form, the
directors may, to enable the Company to deal with the share in accordance
with the provisions of this article, require the Operator of a relevant
system to convert the share into certificated form and after such
conversion may authorise any person to execute an instrument of transfer
and/or take such other steps (including the giving of directions to or on
behalf of the holder, who shall be bound by them) as they think fit to
effect the transfer. The title of the transferee to the share shall not be
affected by any irregularity in or invalidity of the proceedings in
reference to the sale and the transferee shall not be bound to see to the
application of the purchase money.
17. The net proceeds of the sale, after payment of the costs, shall be applied
in payment of so much of the amount for which the lien exists as is
presently payable, and any residue shall (upon surrender to the Company
for cancellation of the certificate for the share sold, in the case of a
share in certificated form, and subject to a like lien for any amount not
presently payable as existed upon the share before the sale) be paid to
the person entitled to the share at the date of the sale.
CALLS ON SHARES, FORFEITURE AND SURRENDER
18. Subject to the terms of allotment, the directors may make calls upon the
members in respect of any amounts unpaid on their shares (whether in
respect of nominal value or premium) and each member shall (subject to
receiving at least fourteen clear days' notice specifying when and where
payment is to be made) 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, before receipt by the Company of an amount due
under it, be revoked in whole or in part and payment of a call may be
postponed in whole or part. A person upon whom a call is made shall remain
liable for calls made
7
upon him notwithstanding the subsequent transfer of the shares in respect
of which the call was made.
19. A call shall be deemed to have been made at the time when the resolution
of the directors authorising the call was passed.
20. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect of it.
21. If a call or an instalment of a call remains unpaid in whole or in part
after it has become due and payable the person from whom it is due shall
pay interest on the amount unpaid, from the day it became due and payable
until it is paid at the rate fixed by the terms of allotment of the shares
in question or in the notice of the call or, if no rate is fixed, at the
appropriate rate (as defined by the Act) but the directors may waive
payment of the interest wholly or in part.
22. An amount payable in respect of a share on allotment or at any fixed date,
whether in respect of nominal value or premium or as an instalment of a
call, shall be deemed to be a call and if it is not paid these articles
shall apply as if that sum had become due and payable by virtue of a call
duly made and notified.
23. Subject to the terms of allotment, the directors may differentiate between
the holders in the amounts and times of payment of calls on their shares.
24. The directors may receive from any member willing to advance it all or any
part of the amount unpaid on the shares held by him (beyond the sums
actually called up) as a payment in advance of calls, and such payment
shall, to the extent of it, extinguish the liability on the shares in
respect of which it is advanced. The Company may pay interest on the
amount so received, or so much of it as exceeds the sums called up on the
shares in respect of which it has been received, at such rate (if any) as
the member and the directors agree.
25. If a call or an instalment of a call remains unpaid, in whole or in part,
after it has become due and payable, the directors may give to the person
from whom it is due not less than fourteen clear days' notice requiring
payment of the amount unpaid together with any interest which may have
accrued and any costs, charges and expenses incurred by the Company by
reason of such non-payment. The notice shall name the place where payment
is to be made and shall state that if the notice is not complied with the
shares in respect of which the call was made will be liable to be
forfeited. If the notice is not complied with, any shares in respect of
which it was given may, before the payment required by the notice has been
made, be forfeited by a resolution of the directors and the forfeiture
shall include all dividends and other amounts payable in respect of the
forfeited shares and not paid before the forfeiture.
26. Subject to the provisions of the Act, a forfeited share shall be deemed to
belong to the Company and may be sold, re-allotted or otherwise disposed
of on such terms and in such manner as the directors determine either to
the person who was before the forfeiture the holder or to any other person
and, at any time before the disposition, the forfeiture may be cancelled
on such terms as the directors determine. Where for the purposes of its
disposal a forfeited share is to be transferred to any person, the
directors may, in the case of a share in certificated form, authorise
someone to execute an instrument of transfer and, in the case of a share
in certificated form, the directors
8
may, to enable the Company to deal with the share in accordance with the
provisions of this article, require the Operator of a relevant system to
convert the share into certificated form and after such conversion may
authorise any person to execute an instrument of transfer and/or take such
other steps (including the giving of directions to or on behalf of the
holder, who shall be bound by them) as they think fit to effect the
transfer of the share to that person. The Company may receive the
consideration given for the share on its disposal and register the
transferee as the holder of the share.
27. A person any of whose shares have been forfeited shall cease to be a
member in respect of them and shall surrender to the Company for
cancellation the certificate for the shares forfeited but shall remain
liable to the Company for all amounts which at the date of forfeiture were
presently payable by him to the Company in respect of those shares with
interest at the rate at which interest was payable on those amounts before
the forfeiture or, if no interest was so payable, at the appropriate rate
(as defined in the Act) from the date of forfeiture until payment, but the
directors may waive payment wholly or in part or enforce payment without
any allowance for the value of the shares at the time of forfeiture or for
any consideration received on their disposal.
28. The board may accept the surrender of any share which it is in a position
to forfeit upon such terms and conditions as may be agreed and, subject to
any such terms and conditions a surrendered share be treated as if it had
been forfeited.
29. The forfeiture of a share shall involve the extinction at the time of
forfeiture of all interest in and all claims and demands against the
Company in respect of the share and all other rights and liabilities
incidental to the share as between the person whose share is forfeited and
the Company, except only such of those rights and liabilities as are by
these articles expressly saved, or are by the Act given or imposed in the
case of past members.
30. A statutory declaration by a director or the secretary that a share has
been forfeited on a specified date shall be conclusive evidence of the
facts stated in it as against all persons claiming to be entitled to the
share and the declaration shall (subject to the execution of an instrument
of transfer if necessary, in the case of a share in certificated form)
constitute a good title to the share and the person to whom the share is
disposed of shall not be bound to see to the application of the
consideration, if any, nor shall his title to the share be affected by any
irregularity in or invalidity of the proceedings relating to the
forfeiture or disposal of the share.
TRANSFER OF SHARES
31. The instrument of transfer of a share in certificated form may be in any
usual form or in any other form which the directors approve and shall be
executed by or on behalf of the transferor and, where the share is not
fully paid, by or on behalf of the transferee.
32. Where any class of shares is, for the time being, a participating
security, title to shares of that class which are recorded on an Operator
register of members as being held in uncertificated form may be
transferred by means of the relevant system concerned.
33. (1) The directors may refuse to register any transfer of a share in
certificated form if it is their opinion that such transfer would or
might (a) prejudice the right of the Company or any subsidiary to
hold, be awarded or granted or have
9
renewed or extended, any Licence or (b) give rise to or cause,
directly or indirectly, a variation (being a variation which would,
in the opinion of the directors, have a material adverse effect on
the ability of the Company or the relevant subsidiary to operate its
broadcasting business as operated by it at the relevant time) to be
made to, or a revocation or determination of any such Licence by the
ITC provided that the provisions of articles 45 to 51 will apply in
relation to the shares which are the subject of any such transfer.
The directors may, in their absolute discretion and without giving
any reason, refuse to register the transfer of a share in
certificated form which is not fully paid. They may also refuse to
register a transfer of a share in certificated form unless the
instrument of transfer:
(a) is lodged, duly stamped, at the Office or at such other place
as the directors may appoint and (except in the case of a
transfer by a recognised person where a certificate has not
been issued in respect of the share) is accompanied by the
certificate for the share 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;
(b) is in respect of only one class of share; and
(c) is in favour of not more than four transferees jointly.
(2) The directors may refuse to register a transfer of share in
uncertificated form to a person who is to hold it thereafter in
certificated form in any case where the Company is entitled to
refuse (or is excepted from the requirement) under the
Uncertificated Securities Regulations to register the transfer, and
they may refuse to register any such transfer in favour of more than
four transferees.
34. If the directors refuse to register a transfer of a share, they shall
within two months after the date on which the transfer was lodged with the
Company (in the case of a transfer of a share in certificated form) or the
date on which the Operator-instruction was received by the Company (in the
case of a transfer of a share in uncertificated form to a person who is to
hold it thereafter in certificated form) send to the transferee notice of
the refusal.
35. Subject to the Uncertificated Securities Regulations, the registration of
transfers of shares or of any class of shares may be suspended at such
time and for such periods (not exceeding thirty days in any year) as the
directors may determine.
36. The registration of transfers of shares or of any class of shares may be
suspended at such times and for such periods (not exceeding thirty days in
any year) as the directors may determine.
37. No fee shall be charged for the registration of any instrument of transfer
or other document or instruction relating to or affecting the title to any
share.
38. 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 (except where fraud or any other crime involving
dishonesty is suspected in relation to such transfer) be returned to the
person lodging it when notice of the refusal is given.
10
39. Nothing in these articles shall preclude the directors from recognising a
renunciation of the allotment of any share by the allottee in favour of
some other person.
TRANSMISSION OF SHARES
40. If a member dies the survivor or survivors where he was a joint holder, or
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; but nothing in this article
shall release the estate of a deceased member from any liability in
respect of any share which had been jointly held by him.
41. A person becoming entitled to a share in consequence of the death or
bankruptcy of a member may, upon such evidence being produced as the
directors may properly require, elect 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
the provisions of these articles relating to the transfer of shares shall
apply to the notice or instrument of transfer as if it were an instrument
of transfer signed by the member and the death or bankruptcy of the member
had not occurred.
42. A person becoming entitled to a share by reason of the death or bankruptcy
of a member or otherwise by operation of law shall, upon such evidence
being produced as the directors may reasonably require as to his
entitlement, have the rights to which he would be entitled if he were the
holder of the share, and may give discharge for all dividends and other
moneys payable in respect of the share, except that he shall not, before
being registered as the holder of the share, be entitled in respect of it
to attend or vote at any general meeting or at any separate meeting of the
holders of any class of shares.
SHARE WARRANTS
43. (1) The Company with respect to fully paid shares may issue share
warrants stating that the bearer is entitled to the shares therein
specified, and may provide by coupons or otherwise for the payment
of future dividends or other moneys on or in respect of the shares
included in such share warrants.
(2) A share warrant shall entitle the bearer thereof to the shares
included in it, and the shares may be transferred by the delivery of
the share warrant, and the provisions of these articles with respect
to share certificates, liens, calls on shares and forfeiture and
surrender, disclosure of interest, transfer of shares and
transmission of shares shall not apply in relation to share warrants
or the holders thereof. Each share warrant shall be issued under the
seal.
(3) The directors shall be at liberty to accept a certificate (in such
form and from such person as the directors may approve) to the
effect that a specified person is shown in the records of the person
issuing such certificate as being entitled to the shares comprised
in a specified share warrant as sufficient evidence of the facts
stated in such certificate, and may treat the deposit of such
certificate at the Office (or any other place specified from time to
time by the directors) as equivalent to the deposit there of the
share warrant, and may (inter alia) allot to the person named in
such certificate any shares to which the bearer of
11
the share warrant referred to in such certificate may be entitled
and the rights of the allottee to the allotment shall not, after
allotment, be questioned by any person.
(4) The directors may determine and from time to time vary the
conditions upon which share warrants shall be issued, and in
particular (but without limitation) upon which a new share warrant
or coupon will be issued in the place of one worn out, defaced, lost
or destroyed (provided that no new share warrant may be issued to
replace one that has been lost unless the directors are satisfied
beyond reasonable doubt that the original share warrant has been
destroyed), upon which (subject as hereinafter provided) the bearer
of a share warrant shall be entitled to attend and vote at general
meetings, and upon which a share warrant may be surrendered and the
name of the holder entered in the register of members in respect of
the shares therein specified. Subject to such conditions and to
these articles, the bearer of a share warrant shall be subject to
the conditions for the time being in force relating to share
warrants, whether made before or after the issue of such share
warrant.
(5) Subject to any conditions for the time being in force relating to
share warrants and as otherwise expressly provided in these
articles, the bearer of a share warrant may at any time deposit the
share warrant at the Office (or at such other place as the directors
may from time to time appoint) and, so long as the share warrant
remains so deposited, the depositor shall have the same right of
signing a requisition for calling a meeting of the Company, of
giving notice of intention to submit a resolution to a meeting and
of attending and voting, giving a proxy and exercising the other
privileges of a member at any meeting held after the expiration of
forty-eight hours from the time of deposit, as if his name were
inserted in the register of members as the holder of the shares
included in the deposited share warrant. Not more than one person
shall be recognised as a depositor of any share warrant. Every share
warrant which shall have been so deposited as aforesaid shall remain
so deposited until after the closing of the meeting at which the
depositor desires to attend or to be represented.
(6) Subject as otherwise expressly provided in these articles or in any
conditions for the time being in force relating to share warrants,
no person shall, as bearer of a share warrant, be entitled to sign a
requisition for calling a meeting of the Company or give notice of
intention to submit a resolution to a meeting or attend or vote or
give a proxy or exercise any other privilege of a member at a
meeting of the Company, or be entitled to receive any notices or any
documents pursuant to these articles from the Company, but the
bearer of a share warrant shall be entitled in all other respects to
the same privileges and advantages as if he were named in the
register of members as the holder of the shares included in the
share warrant, and he shall be deemed to be a member of the Company.
(7) Without prejudice to any powers which the Company or the directors
may have to issue, dispose of, convert, or otherwise deal with or
make arrangements in relation to, share warrants and other
securities in any form:
12
(a) the holding of share warrants in uncertificated form and the
transfer of title to such share warrants by means of a
relevant system shall be permitted; and
(b) the Company may issue share warrants in uncertificated form
and may convert share warrants from certificated form to
uncertificated form and vice versa.
If and to the extent that any provision of these articles is
inconsistent with such holding or transfer as is referred to in
sub-paragraph (7)(a) of this article above or with any provision of
the Uncertificated Securities Regulations, it shall not apply to any
share warrant in uncertificated form.
DISCLOSURE OF INTERESTS
44. (1) If a member, or any other person appearing to be interested in
shares held by that member, has been given a notice under section
212 of the Act and has failed in relation to any shares (the
"default shares") to give the Company the information thereby
required within 14 days from the date of giving the notice, the
following sanctions shall apply, unless the directors otherwise
determine:
(a) the member shall not be entitled in respect of the default
shares to be present or to vote (either in person or by
representative or proxy) at any general meeting or at any
separate meeting of the holders of any class of shares or on
any poll; and
(b) where the default shares represent at least 0.25 per cent of
their class:
(i) any dividend payable in respect of the shares shall be
withheld by the Company, which shall not have any
obligation to pay interest on it, and the member shall
not be entitled to elect, pursuant to these articles, to
receive shares instead of that dividend; and
(ii) no transfer, other than an excepted transfer, of any
shares held by the member in certificated form shall be
registered unless:
(A) the member is not himself in default as regards
supplying the information required; and
(B) the member proves to the satisfaction of the
directors that no person in default as regards
supplying such information is interested in any of
the shares the subject of the transfer.
(iii) for the purposes of sub-paragraph (1)(b)(ii) of this
article, in the case of shares held by the member in
uncertificated form, the directors may, to enable the
Company to deal with the shares in accordance with the
provisions of this article, require the Operator of a
relevant system to convert the shares into certificated
form.
13
(2) Where the sanctions under paragraph (1) of this article apply in
relation to any shares, they shall cease to have effect at the end
of the period of seven days (or such shorter period as the directors
may determine) following the earlier of:
(a) receipt by the Company of the information required by the
notice mentioned in that paragraph; and
(b) receipt by the Company of notice that the shares have been
transferred by means of an excepted transfer,
and the directors may suspend or cancel any of the sanctions at any
time in relation to any shares.
(3) Any new shares in the Company issued in right of default shares
shall be subject to the same sanctions as apply to the default
shares, and the directors may make any right to an allotment of the
new shares subject to sanctions corresponding to those which will
apply to those shares on issue: provided that any sanctions applying
to, or to a right to, new shares by virtue of this paragraph shall
cease to have effect when the sanctions applying to the related
default shares cease to have effect (and shall be suspended or
cancelled if and to the extent that the sanctions applying to the
related default shares are suspended or cancelled); and provided
further that paragraph (1) of this article shall apply to the
exclusion of this paragraph if the Company gives a separate notice
under section 212 of the Act in relation to the new shares.
(4) Where, on the basis of information obtained from a member in respect
of any share held by him, the Company gives a notice under section
212 of the Act to any other person, it shall at the same time send a
copy of the notice to the member, but the accidental omission to do
so, or the non-receipt by the member of the copy, shall not
invalidate or otherwise affect the application of paragraph (1) of
this article.
(5) For the purposes of this article:
(a) a person, other than the member holding a share, shall be
treated as appearing to be interested in that share if the
member has informed the Company that the person is, or may be,
so interested, or if the Company (after taking account of any
information obtained from the member or, pursuant to a notice
under section 212 of the Act, from anyone else) knows or has
reasonable cause to believe that the person is, or may be, so
interested;
(b) "interested" shall be construed as it is for the purpose of
section 212 of the Act;
(c) reference to a person having failed to give the Company the
information required by a notice, or being in default as
regards supplying such information, includes (i) reference to
his having failed or refused to give all or any part of it and
(ii) reference to his having given information which he knows
to be false in a material respect or having recklessly given
information which is false in a material respect;
14
(d) an "excepted transfer" means, in relation to any shares held
by a member:
(i) a transfer pursuant to acceptance of a takeover offer
(within the meaning in Part XIIIA of the Act) in respect
of shares in the Company; or
(ii) a transfer in consequence of a sale made through a
recognised investment exchange (as defined in the
Financial Services and Markets Act 2000) or any other
stock exchange outside the United Kingdom on which the
Company's shares are normally traded; or
(iii) a transfer which is shown to the satisfaction of the
directors to be made in consequence of a sale of the
whole of the beneficial interest in the shares to a
person who is unconnected with the member and with any
other person appearing to be interested in the shares.
(6) Nothing in this article shall limit the powers of the Company under
section 216 of the Act or any other powers of the Company
whatsoever.
RELEVANT INVESTORS
45. The directors may at any time serve a notice upon any member, who has had
shares transferred to him pursuant to a share transfer, requiring him to
furnish the directors with information (in the case of (2) below, to the
extent that such paragraph applies to any person other than the member, so
far as such information lies within the knowledge of or can be obtained by
such member), supported by a declaration and by such other evidence (if
any) in support thereof as the directors may require, for the purpose of
determining:
(1) whether such member is or is likely to be a party to an agreement or
arrangement (whether legally enforceable or not) whereby any of the
shares held by him are to be voted in accordance with some other
person's instructions (whether given by that other person directly
or through any other person); or
(2) whether such member and/or any other person who has an interest in
any shares held by such member is a Relevant Investor.
If such information and evidence is not furnished within a reasonable
period (not being less than 14 days) from the date of service of such
notice or the information and evidence provided is, in the opinion of the
directors, unsatisfactory for the purposes of so determining, the
directors may serve upon such member a further notice calling upon him,
within 14 days after the service of such further notice, to furnish the
directors with such information and evidence or further information or
evidence as shall (in their opinion) enable them so to determine.
46. (1) If any person (to the knowledge of the directors) becomes or is
deemed in accordance with article 47 to be a Relevant Investor by
reason of the transfer of any shares to him, the directors may serve
a written notice (a "Disposal Notice") on all those who (to the
knowledge of the directors) have an interest
15
in, and, if different, on the holder or holders of, the Specified
Shares. The Disposal Notice shall refer to the voting restrictions
as set out in article 49 and shall call for a Mandated Disposal to
be made and shall state the number of Excess Shares in respect of
which the Mandated Disposal is to be made and shall call for
reasonable evidence that such Mandated Disposal has been effected to
be supplied to the Company within 21 days from the date of such
notice or such other period as the directors may consider reasonable
and which they may extend. The directors may withdraw a Disposal
Notice (whether before or after the expiration of the period
referred to) if it appears to them that there is no Relevant
Investor in relation to such Excess Shares.
(2) If a Disposal Notice served under this article is not complied with
to the satisfaction of the directors and has not been withdrawn, the
holder or holders on whom such notice shall have been served shall
be deemed to have constituted the directors their agents and the
directors may, so far as they are able, make a Mandated Disposal of
the number of Excess Shares stated in the relevant Disposal Notice,
at the best price reasonably obtainable and shall give written
notice of such disposal to those persons on whom the Disposal Notice
was served. Except as hereinafter provided, such a Mandated Disposal
shall be completed as soon as reasonably practicable after expiry of
the Disposal Notice as may in the opinion of the directors be
consistent with obtaining the best price reasonably obtainable and
in any event within 30 days of expiry of such Disposal Notice
provided that a Mandated Disposal may be suspended during the period
when dealings by the directors in the shares are not permitted
either by law or by regulations of the competent authority
(designated as such for the purposes of the Financial Services and
Markets Act 2000) or the New York Stock Exchange, but any Mandated
Disposal suspended as aforesaid shall be completed within 30 days
after expiry of the period of such suspension and provided further
that neither the Company nor the directors shall be liable to any
holder for failing to obtain the best price so long as the directors
act in good faith within the period specified above. If on a
Mandated Disposal being made by the directors, Excess Shares are
held by more than one holder (treating joint holders of any relevant
shares as a single holder) the directors shall cause the same
proportion of each holding as is known to them to be sold.
(3) For the purpose of effecting any Mandated Disposal, the directors
may authorise in writing any officer or employee of the Company to
execute, complete and deliver any necessary transfer in the name and
on behalf of any holder and may issue a new certificate to the
purchaser. The net proceeds of such disposal shall be received by
the Company, whose receipt shall be a good discharge for the
purchase money, and shall be paid (without any interest being
payable thereon) to the former holder upon surrender by him of the
certificate in respect of the shares sold and formerly held by him.
After the name of the purchaser (or his nominee) has been entered in
the register of members, the validity of the proceedings shall not
be questioned by any person.
47. (1) The directors may assume without enquiry that a person is not a
Relevant Investor. The directors may determine that any person is a
Relevant Investor if there are reasonable grounds for believing that
that person is a Relevant
16
Investor (notwithstanding that the Company has not been supplied
with a declaration or other evidence establishing to its
satisfaction that such person is or may become a Relevant Investor)
until such time as they are satisfied that such is not the case.
(2) If in accordance with this article the directors shall have assumed
that any person is not a Relevant Investor, the exercise by that
person of any right attaching to any share in which he is interested
shall not be challenged or invalidated by any subsequent
determination by the directors that such person is a Relevant
Investor.
48. The directors shall not be obliged to serve any Disposal Notice under
article 46(1) upon any person if they do not know his identity or his
address and the absence of service of such a notice in such circumstances
as aforesaid and any accidental error in giving, or failure to give, any
notice to any person upon whom notice is served under the foregoing
articles shall not prevent the implementation of or invalidate any
procedure thereunder. Any notice to be served under article 46(1) upon a
person who is not a holder shall be deemed validly served if sent through
the post to that person at the address, if any, at which the directors
believe him to be resident or carrying on business. Any such notice shall
be deemed served on the day following any day on which it was put in the
post and, in proving service, it shall be sufficient to prove that the
notice was properly addressed, stamped and put in the post. Any
determination of the directors under the provisions of articles 45 to 47
shall be final and conclusive, but without prejudice to the power of the
directors subsequently to vary or revoke such. determination.
49. The holder or holders of the Excess Shares who has pursuant to article
46(1) been served with a Disposal Notice by the directors shall not, with
effect from the expiration of such period as the directors shall specify
in such notice (not being longer than 30 days from the date of service of
the notice), be entitled to receive notice of, or to attend or vote at,
any general meeting of the Company or any meeting of the holders of shares
of the relevant class in respect of the shares referred to in that article
as Excess Shares.
50. Any member who has pursuant to article 45 been served with a further
notice by the directors requiring him to furnish the directors with
information and evidence or further information or evidence within 14 days
after the service of such further notice shall not, with effect from the
expiration of such period and until information or evidence is furnished
to the satisfaction of the directors, be entitled to receive notice of, or
to attend or vote at, any general meeting of the Company or meeting of the
holders of shares of any class other than in respect of such of the shares
held by such member as are shares in respect of which it shall have been
established to the satisfaction of the directors that they are not Excess
Shares.
51. (1) The provisions of Articles 46 to 50 shall not apply to the
Company during any Non-Licence Period.
(2) A Non-Licence Period shall be any period during which none of the
following conditions are fulfilled:
(a) the Company or any of its subsidiaries shall be or shall have
at any time during the three months previously been a Licence
Holder;
17
(b) the ITC shall have notified the Company or any of its
subsidiaries of its intention to award or grant the Company or
any of its subsidiaries a Licence (and shall not have yet
awarded or granted a licence or given notice of withdrawal of
such intention);
(c) the Company or any of its subsidiaries shall have made (and
not withdrawn) an application to the ITC for the award or
grant or extension or renewal of a Licence and the ITC shall
not have notified the Company or such subsidiary that such
application has been unsuccessful or rejected or refused; and
(d) the directors shall have passed a resolution that it is the
intention of the Company or any of its subsidiaries to apply
to the ITC for the award or grant or extension or renewal of a
Licence within one year of the date of such resolution
provided that if such resolution has been passed more than six
months prior to the relevant date the provisions of this
paragraph (d) shall not apply unless a further resolution has
been passed in terms mutatis mutandis nor if such an
application has been made and has been unsuccessful or
withdrawn or rejected or refused.
(3) For the purposes of articles 45 to 50 the directors may, to enable
the Company to deal with shares in uncertificated form in accordance
with the provisions of such articles, require the Operator of a
relevant system to convert the shares into certificated form.
UNTRACED MEMBERS
52. (1) The Company shall be entitled to sell at the best price
reasonably obtainable any share held by a member, or any share to
which a person is entitled by transmission, if:
(a) for a period of 12 years no cheque or warrant or other method
of payment for amounts payable in respect of the share sent
and payable in a manner authorised by these articles has been
cashed or been successful and no communication has been
received by the Company from the member or person concerned;
(b) during that period at least three dividends in respect of the
share have become payable;
(c) the Company has, after the expiration of that period, by
advertisement in a leading national daily newspaper published
in the United Kingdom and in a newspaper circulating in the
area of the registered address or last known address of the
member or person concerned, given notice of its intention to
sell such share; and
(d) the Company has not during the further period of three months
after the date of the advertisement and prior to the sale of
the share received any communication from the member or person
concerned.
(2) The Company shall also be entitled to sell at the best price
reasonably obtainable any additional share issued during the said
period of twelve years in right of any share to which paragraph (I)
of this article applies (or in right of
18
any share so issued), if the criteria in sub-paragraphs (a), (c) and
(d) of that paragraph are satisfied in relation to the additional
share (but as if the words "for a period of 12 years" were omitted
from sub-paragraph (a) and the words ",after the expiration of that
period," were omitted from sub-paragraph (c)).
(3) To give effect to the sale of any share pursuant to this article the
Company may, in the case of a share in certificated form, appoint
any person to execute an instrument of transfer of the share, and
the instrument shall be as effective as if it had been executed by
the registered holder of, or person entitled by transmission to, the
share; and in the case of a share in uncertificated form, the
directors may, to enable the Company to deal with the share in
accordance with the provisions of this article, require the Operator
of a relevant system to convert the share into certificated form and
after such conversion may authorise any person to execute an
instrument of transfer and/or take such other steps (including the
giving of directions to or on behalf of the holder, who shall be
bound by them) as it thinks fit to effect the transfer. The
purchaser shall not be bound to see to the application of the
proceeds of sale, nor shall his title to the share be affected by
any irregularity in or invalidity of the proceedings relating to the
sale. The Company shall be indebted to the member or other person
entitled to the share for an amount equal to the net proceeds of the
sale, but no trust or duty to account shall arise and no interest
shall be payable in respect of the proceeds of sale, which may be
employed in the business of the Company or invested in such
investments as the directors may think fit.
STOCK
53. The Company may by ordinary resolution convert any paid up shares into
stock and re-convert any stock into paid up shares of any denomination.
54. A holder of stock may transfer it or any part of it in the same manner,
and subject to the same provisions of these articles as would have applied
to the shares from which the stock arose if they had not been converted,
or as near thereto as circumstances admit, but the directors may fix the
minimum amount of stock transferable at an amount not exceeding the
nominal amount of any of the shares from which the stock arose.
55. A holder of stock shall, according to the amount of the stock held by him,
have the same rights as if he held the shares from which the stock arose
provided that no such right (except participation in dividends and in the
assets of the Company) shall be conferred by an amount of stock which
would not, if existing in shares, have conferred that right.
56. All the provisions of these articles applicable to paid up shares shall
apply to stock, and the words "share" and "member" shall include "stock"
and "stockholder" respectively.
ALTERATION OF CAPITAL
57. The Company may by ordinary resolution:
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(a) increase its share capital by new shares of such amount as the
resolution prescribes;
(b) consolidate and divide all or any of its share capital into shares
of larger amount than its existing shares;
(c) subject to the provisions of the Act, sub-divide its shares, or any
of them, into shares of smaller amount than is fixed by the
memorandum;
(d) determine that, as between the shares resulting from such a
sub-division, any of them may have any preference or advantage as
compared with the others; and
(e) cancel shares which, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the shares
so cancelled.
58. Whenever as a result of a consolidation of shares any members would become
entitled to fractions of a share, the directors may on behalf of those
members sell to any person (including, subject to the provisions of the
Act, the Company) the shares representing the fractions for the best price
reasonably obtainable and distribute the net proceeds of sale in due
proportion among those members, and the directors may, in the case of
shares in certificated form, authorise some person to execute an
instrument of transfer of the shares to or in accordance with the
directions of the purchaser; and, in the case of shares in uncertificated
form the directors may to enable the Company to deal with the share in
accordance with the provisions of this article require the Operator of a
relevant system to convert the share into certificated form and after such
conversion may authorise any person to execute an instrument of transfer
and/or take such other steps (including the giving of directions to or on
behalf of the holder, who shall be bound by them) as they think fit to
effect the transfer. 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.
59. Subject to the provisions of the Act, the Company may by special
resolution reduce its share capital, any capital redemption reserve and
any share premium account or other undistributable reserve, in any way.
PURCHASE OF OWN SHARES
60. Subject to the provisions of the Act, the Company may purchase its own
shares, including redeemable shares at any price (whether at par or above
or below par), and so that any shares to be so purchased may be selected
in any manner whatsoever.
GENERAL MEETINGS
61. All general meetings other than annual general meetings shall be called
extraordinary general meetings.
62. The directors may call general meetings whenever and at such time and
places as they shall determine. If there are not within the United Kingdom
sufficient directors to call a general meeting, any director or, if there
is no director within the United Kingdom, any member of the Company may
call a general meeting.
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63. For the purpose of controlling the level of attendance at any place
specified for the holding of a general meeting, the directors may from
time to time make such arrangements whether involving the issue of tickets
(on a basis intended to afford to all members otherwise entitled to attend
such meeting an equal opportunity of being admitted to the meeting) or the
imposition of some random means of selection or otherwise as they shall in
their absolute discretion consider to be appropriate, and may from time to
time vary any such arrangements or make new arrangements in place thereof
and the entitlement of any member or proxy to attend a general meeting at
such place shall be subject to any such arrangements as may be for the
time being in force and by the notice of meeting stated to apply to that
meeting. In the case of any general meeting to which such arrangements
apply the directors shall, and in the case of any other general meeting
the directors may, when specifying the place of the general meeting,
direct that the meeting shall be held at a place specified in the notice
at which the chairman of the meeting shall preside ("the Principal Place")
and make arrangements for simultaneous attendance and participation at
other places by members otherwise entitled to attend the general meeting
but excluded therefrom under the provisions of this article or who wish to
attend at any of such other places Provided that persons attending at the
Principal Place and at any of such other places shall be able to see and
hear and be seen and heard by persons attending at the Principal Place and
at such other places. Such arrangements for simultaneous attendance may
include arrangements for controlling the level of attendance in any manner
aforesaid at such other places provided that they shall operate so that
any such excluded members as aforesaid are able to attend at one of such
other places. For the purposes of all other provisions of these articles
any such meeting shall be treated as being held and taking place at the
Principal Place.
NOTICE OF GENERAL MEETINGS
64. Subject to the provisions of the Act, 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. The notice shall specify the place, the day
and the time of meeting and the general nature of the business to be
transacted, and in the case of an annual general meeting shall specify the
meeting as such. Subject to the provisions of these articles and to any
rights or restrictions attached to any shares, notices shall be given to
all members, to all persons entitled to a share in consequence of the
death or bankruptcy of a member or operation of law and to the directors
and auditors of the Company.
65. 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 that meeting.
PROCEEDINGS AT GENERAL MEETINGS
66. No business shall be transacted at any meeting unless a quorum is present.
Two 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 corporation which is a member, shall be a quorum.
67. If a quorum is not present within half an hour after the time appointed
for holding the meeting, or if during a meeting a quorum ceases to be
present, the meeting shall stand
21
adjourned to the same day in the next week at the same time and place, or
to such day, time and place as the directors may determine. If at the
adjourned meeting a quorum is not present within fifteen minutes after the
time appointed for holding the meeting, the meeting shall be dissolved.
68. The chairman (if any) of the board of directors, or in his absence the
vice-chairman, or in the absence of both of them some other director
nominated by the directors, shall preside as chairman of the meeting, but
if neither the chairman nor the vice-chairman nor such other director (if
any) is present within fifteen minutes after the time appointed for
holding the meeting and willing to act, the directors present shall elect
one of their number present to be chairman and, if there is only one
director present and willing to act, he shall be chairman.
69. If 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 their number
to be chairman.
70. A director shall, notwithstanding that he is not a member, be entitled to
attend and speak at any general meeting and at any separate meeting of the
holders of any class of shares.
71. Without prejudice to any other power of adjournment he may have under
these articles or at common law, the chairman may, with the consent of a
meeting at which a quorum is present (and shall if so directed by the
meeting), adjourn the meeting from time to time and from place to place,
but no business shall be transacted at an adjourned meeting other than
business which might properly have been transacted at the meeting had the
adjournment not taken place. When a meeting is adjourned for fourteen days
or more, at least seven clear days' notice shall be given specifying the
time and place of the adjourned meeting and the general nature of the
business to be transacted. Otherwise it shall not be necessary to give
notice of an adjournment.
72. If an amendment proposed to any resolution under consideration is ruled
out of order by the chairman, the proceedings on the resolution shall not
be invalidated by any error in the ruling.
73. A resolution put to the vote of a meeting shall be decided on a show of
hands unless, before, or on the declaration of the result of, the show of
hands or on the withdrawal of any other demand for a poll, a poll is duly
demanded. Subject to the provisions of the Act, a poll may be demanded
(a) by the chairman; or
(b) by not less than five members having the right to vote at the
meeting; or
(d) by a member or members representing not less than one-tenth of the
total voting rights of all the members having the right to vote at
the meeting; or
(e) by a member or members holding shares conferring a right to vote at
the meeting on the resolution 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.
22
74. Unless a poll is duly 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.
75. The demand for a poll may, before the poll is taken, be withdrawn 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. If the demand for a poll is withdrawn, the chairman
or any other member entitled may demand a poll.
76. A poll shall be taken 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.
77. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman shall be entitled to a casting vote in addition to any
other vote he may have.
78. 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 and place as the
chairman directs, not being more than thirty days after the poll is
demanded. 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.
79. 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 in respect
of 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.
VOTES OF MEMBERS
80. Subject to any rights or restrictions attached to any shares, on a show of
hands every member who (being an individual) is present in person or
(being a corporation) is present by a duly authorised representative who
is not himself a member entitled to vote, shall have one vote, and on a
poll every member shall have one vote for every share of which he is the
holder.
81. In the case of joint holders the vote of the senior who tenders a vote
shall be accepted to the exclusion of the votes of the other joint
holders, and seniority shall be determined by the order in which the names
of the holders stand in the register of members.
82. A member in respect of whom an order has been made by any court having
jurisdiction (whether in the United Kingdom or elsewhere) in matters
concerning mental disorder may vote, on a show of hands or on a poll, by
any person authorised in that behalf by that court, who may on a poll vote
by proxy. Evidence to the satisfaction of the directors of the authority
of the person claiming the right to vote
23
shall be deposited at or sent to the Office, or such other place as is
specified in accordance with these articles for the deposit of receipt of
appointments of proxy, not less than 48 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.
83. No member shall have the right to vote at any general meeting or at any
separate meeting of the holders of any class of shares, either in person
or by representative or proxy, in respect of any share held by him unless
all amounts presently payable by him in respect of that share have been
paid.
84. No objection shall be raised to the qualification of any voter or to the
counting of, or failure to count, any vote, except at the meeting or
adjourned meeting at which the vote objected to is tendered. Subject to
any objection made in due time, every vote counted and not disallowed at
the meeting shall be valid and every vote disallowed or not counted shall
be invalid. Any objection made in due time shall be referred to the
chairman whose decision shall be final and conclusive.
85. On a poll votes may be given either personally or by proxy or (in the case
of a corporate member) by a duly authorised representative. A member
entitled to more than one vote need not, if he votes, use all his votes or
cast all the votes he uses the same way. A proxy need not be a member. A
member may appoint more than one proxy to attend on the same occasion.
Submitting an appointment of proxy shall not preclude a member form
attending and voting at the meeting or at any adjournment of it.
86. Subject to article 87 below, an appointment of 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 which in the case of a
corporation may be either under its common seal or under the hand of a
duly authorised officer.
87. The directors may allow the appointment of a proxy to be contained in an
electronic communication subject to any requirements as to authentication
of the appointment and any limitations, restrictions or conditions as the
directors may think fit.
88. The appointment of a proxy and any authority under which it is executed or
a copy of the authority certified notarially or in some other way approved
by the directors may:
(a) in the case of an appointment of proxy in writing be deposited at
the Office or at such other place in the United Kingdom as is
specified in the notice convening the meeting, or in any appointment
of proxy sent by the Company in relation to the meeting, not less
than 48 hours before the time for holding the meeting or adjourned
meeting at which the person named in the appointment of proxy
proposes to vote; or
(b) in the case of an appointment contained in an electronic
communication, be received at the address specified in the notice
convening the meeting, or in any appointment of proxy sent out by
the Company in relation to the meeting, or in any invitation to
appoint a proxy issued by the Company in relation to the meeting,
not less than 48 hours before the time for holding the meeting or
adjourned meeting at which the person named in the appointment of
proxy proposes to vote; or
24
(c) in the case of a poll taken more than 48 hours after it was
demanded, be deposited or received as aforesaid after the poll has
been demanded and not less than 24 hours before the time appointed
for taking the poll; or
(d) where the poll is not taken forthwith but is taken not more than 48
hours after it was demanded, be delivered at the meeting to the
chairman or to the secretary or to any director,
and an appointment of proxy which is not deposited, or delivered or
received in a manner so permitted shall be invalid.
89. A vote given or poll demanded by proxy or by the duly authorised
representative of a corporation shall be valid notwithstanding the
previous determination of the authority of the person voting or demanding
a poll, unless notice of the determination was received by the Company at
the Office, or at such other place at which an appointment of proxy may be
duly deposited or the address where an appointment contained in an
electronic communication may be duly received, before the commencement of
the meeting or adjourned meeting at which the vote is given or the poll
demanded or (in the case of a poll not taken on the same day as the
meeting or adjourned meeting) the time appointed for taking the poll.
90. The appointment of a proxy to vote at a meeting shall be deemed also to
confer authority to demand or join in demanding a poll (and for the
purposes of these articles a demand for a poll made by a person as proxy
for a member or as the duly authorised representative of a corporate
member shall be the same as a demand made by the member).
91. The directors may at the expense of the Company send or make available
invitations to appoint a proxy to the members by post or otherwise (with
or without provision for their return prepaid) for use at any general
meeting or at any separate meeting of the holders of any class of shares,
either in blank or nominating in the alternative any one or more of the
directors or any other person. 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 Company's expense, they
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 at it. The accidental omission
to send or make available such an appointment of proxy or give such an
invitation to, or the non-receipt thereof by, any member entitled to
attend and vote, at a meeting shall not invalidate the proceedings at that
meeting.
92. Where two or more valid but differing appointments of proxy are received
in respect of the same share for use at the same meeting the one which is
last sent shall be treated as replacing and revoking the other or others.
If the Company is unable to determine which is last sent, the one which is
last received shall be so treated. If the Company is unable to determine
either which is last sent or which is last received, none of them shall be
treated as valid in respect of that share.
CORPORATIONS ACTING BY REPRESENTATIVES
93. Any corporation which is a member of the Company may, by resolution of its
directors or other governing body, authorise such person as it thinks fit
to act as its representative at any meeting of the Company, or at any
separate meeting of the holders of any class of shares. Except as
otherwise provided in these articles, the
25
person so authorised shall be entitled to exercise the same power on
behalf of the corporation as the corporation could exercise if it were an
individual member of the Company, and the corporation shall for the
purposes of these articles be deemed to be present in person at any such
meeting if a person so authorised is present at it.
DIRECTORS
94. Unless otherwise determined by the Company by ordinary resolution the
number of directors (other than alternate directors) shall not be subject
to any maximum but shall not be less than three.
95. A director shall not be required to hold any shares in the Company by way
of qualification.
96. (1) Until otherwise determined by the Company by ordinary
resolution, there shall be paid to the directors (other than
alternate directors, directors employed by the Company in an
executive capacity and directors appointed by the Principal
Shareholders in accordance with these articles) such fees for their
services in the office of director as the directors may from time to
time determine (not exceeding in the aggregate an annual sum of
Pound Sterling350,0001 or such larger amount as the Company may by
ordinary resolution decide) divided between the directors as they
agree, or, failing agreement, equally except that any director who
shall hold office for part only of the period in respect of which
such fees are payable shall be entitled only to rank in such
division for a proportion of such fees related to the period during
which he has held office. The fees shall be deemed to accrue from
day to day and shall be distinct from and additional to any
remuneration or other benefits which may be paid or provided to any
director pursuant to any other provision of these articles.
(2) The directors may also be paid all travelling, hotel and other
expenses properly incurred by them in connection with their
attendance at meetings of the directors or of committees of the
directors or general meetings or separate meetings of the holders of
any class of shares or otherwise in connection with the discharge of
their duties as directors.
(3) Any director who holds any executive office or who serves on any
committee of the directors or who performs services which the
directors consider go beyond the ordinary duties of a director may
be paid such special remuneration (whether by way of bonus,
commission, participation in profits or otherwise) as the directors
may determine.
ALTERNATE DIRECTORS
97. Any director (other than an alternate director) may appoint any other
director, or any other person approved by resolution of the directors and
willing to act, to be an alternate director and may remove from office an
alternate director appointed by him. Subject to the foregoing, a director
may appoint more than one alternate and a person may act as alternate for
more than one director.
---------
1 By a resolution passed by the Company on 8th November 2002 it was agreed
that the limit of pounds sterling 350,000 be increased to pounds sterling
750,000.
26
98. An alternate director shall be entitled to receive notices of meetings of
the directors and of committees of the directors of which his appointor is
a member, to attend and vote at any such meeting at which the director
appointing him is not present but at which meeting such director would be
entitled to vote, and generally to perform all the functions of his
appointor as a director in his absence, but shall not (unless the Company
by ordinary resolution otherwise determines) be entitled to any fees for
his services as an alternate director.
99. An alternate director shall cease to be an alternate director if his
appointor ceases to be a director; but, if a director retires by rotation
or otherwise but is reappointed or deemed to have been re-appointed at the
meeting at which he retires, any appointment of an alternate director made
by him which was in force immediately prior to his retirement shall
continue after his reappointment.
100. An appointment or removal of an alternate director shall be by notice to
the Company executed by the director making or revoking the appointment or
in any other manner approved by the directors.
101. Save as otherwise provided in these articles, an alternate director shall
be deemed for all purposes to be a director and shall alone be responsible
for his own acts and defaults, and he shall not be deemed to be the agent
of the director appointing him.
POWERS OF DIRECTORS
102. The business of the Company shall be managed by the directors who, subject
to the provisions of the Act, the memorandum and these articles and to any
directions given by special resolution, may exercise all the powers of the
Company. No alteration of the memorandum or 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
the directors at which a quorum is present may exercise all powers
exercisable by the directors.
103. (1) The directors shall restrict the borrowings of the Company and
exercise all powers of control exercisable by the Company in
relation to its subsidiary undertakings so as to secure (as regards
subsidiary undertakings so far as by such exercise they can secure)
that the aggregate principal amount (including any premium payable
on final repayment) outstanding of all money borrowed by the Group
(excluding amounts borrowed by any member of the Group from any
other member of the Group, other than amounts to be taken into
account under paragraph (3)(c) and (d) of this article) shall not at
any time, save with the previous sanction of an ordinary resolution
of the Company, exceed an amount equal to the higher of, from time
to time (i) pound sterling 1,500,000,000 and (ii) an amount equal to
four times the aggregate turnover of the Group as shown in the then
latest audited consolidated profit and loss account of the Group.
(2) In this article:
(a) "the Group" means the Company and its subsidiary undertakings
(if any); and
27
(b) "subsidiary undertaking" has the same meaning as in the Act.
(3) For the purposes of this article, but without prejudice to the
generality of the terms "borrowing" and "borrowed"
(a) amounts borrowed for the purpose of repaying the whole or any
part of any amounts previously borrowed and then outstanding
(including any premium payable on final repayment) and to be
applied for that purpose within six months of the borrowing
shall not, pending such application, be taken into account as
money borrowed;
(b) the principal amount (including any premium payable on final
repayment) of any debentures issued in whole or in part for a
consideration other than cash shall be taken into account as
money borrowed by the member of the Group issuing them;
(c) money borrowed by a partly-owned subsidiary undertaking and
not owing to another member of the Group shall
(notwithstanding sub-paragraph (b) of this paragraph) be taken
into account subject to the exclusion of a proportion of it
equal to the minority proportion, and money borrowed and owing
to a partly-owned subsidiary undertaking by another member of
the Group shall (subject to sub-paragraph (d) of this
paragraph) be taken into account to the extent of a proportion
of it equal to the minority proportion (and for the purpose of
this sub-paragraph "minority proportion" means the proportion
of the issued equity share capital of the partly-owned
subsidiary undertaking which is not attributable, directly or
indirectly, to the Company); and
(d) in the case of money borrowed and owing to a partly-owned
subsidiary undertaking by another partly-owned subsidiary
undertaking the proportion which would otherwise be taken into
account under sub-paragraph (c) of this paragraph shall be
reduced by excluding such part of it as is equal to the
proportion of the issued equity share capital of the borrowing
subsidiary undertaking which is not attributable, directly or
indirectly, to the Company.
(4) In calculating the aggregate amount of borrowings for the purpose of
this article, money borrowed by any member of the Group which is
denominated or repayable in a currency other than sterling shall be
treated as converted into sterling:
(a) at the rate of exchange used for the conversion of that
currency in the latest audited balance sheet of that member;
or
(b) if no rate was so used, at the middle market rate of exchange
prevailing in London at the close of business on the date of
that balance sheet,
but if the amount in sterling resulting from conversion at that rate
would be greater than that resulting from conversion at the middle
market rate prevailing in London at the close of business on the
business day immediately preceding the day on which the calculation
falls to be made, the latter rate shall apply instead.
28
(5) No debt incurred or security given in respect of money borrowed or
to be taken into account as money borrowed in excess of the above
limit shall be invalid or ineffectual except in the case of express
notice to the lender or the recipient of the security at the time
when the debt was incurred or security given that the limit hereby
imposed had been or was thereby exceeded, but no lender or other
person dealing with the Company shall be concerned to see or enquire
whether such limit is observed.
(6) In this article references to a consolidated profit and loss account
of the Group is to be taken:
(a) in a case where the Company had no subsidiary undertakings at
the relevant time, as references to the profit and loss
account of the Company;
(b) in a case where the Company had subsidiary undertakings at the
relevant time but there are no consolidated accounts of the
Group, as references to the respective profit and loss
accounts of the companies comprising the Group; and
(c) in a case where the Company had subsidiary undertakings at the
relevant time, one or more of which has, in accordance with
the Act, been excluded from consolidation as references to the
consolidated profit and loss account of the Company and those
of its subsidiary undertakings included in the consolidation.
DELEGATION OF DIRECTORS' POWERS
104. (1) The directors may delegate any of their powers:
(a) to any managing director, any director holding any other
executive office or any other director;
(b) to any committee consisting (subject as further provided in
Article 106(10)) of one or more directors and (if thought fit)
one or more other persons, but (subject as aforesaid) a
majority of the members of the committee shall be directors
and no resolution of the committee shall be effective unless a
majority of those present when it is passed are directors; and
(c) to any local board or agency for managing any of the affairs
of the Company either in the United Kingdom or elsewhere.
(2) Any such delegation (which may include authority to sub-delegate all
or any of the powers delegated) may be subject to any conditions the
directors impose and either collaterally with or to the exclusion of
their own powers and may be revoked or varied. The power to delegate
under this article, being without limitation, includes power to
delegate the determination of any fee, remuneration or other benefit
which may be paid or provided to any director; and the scope of the
power to delegate under sub-paragraph (a), (b) or (c) of paragraph
(1) of this article shall not be restricted by reference to or
inference from any other of those sub-paragraphs. Subject as
aforesaid, the proceedings of any committee, local board or agency
with two or more members shall be
29
governed by such of these articles as regulate the proceedings of
directors so far as they are capable of applying.
105. The directors may, by power of attorney or otherwise, appoint any person,
whether nominated directly or indirectly by the directors, to be the agent
of the Company for such purposes and subject to such conditions as they
think fit, and may delegate any of their powers to such an agent. The
directors may revoke or vary any such appointment or delegation and may
also authorise the agent to sub-delegate all or any of the powers vested
in him.
APPOINTMENT AND RETIREMENT OF DIRECTORS
106. (1) The Principal Shareholders have the following rights to appoint
and remove directors:
(a) (i) for so long as News remains the beneficial owner of
not less than 30 per cent. in nominal value of the
issued ordinary share capital from time to time of the
Company, The News Corporation Limited ("News Corp") or
such subsidiary of News Corp which is the beneficial
owner of the majority of the ordinary shares in the
capital of the Company beneficially owned by News at the
relevant time, shall have the right to appoint, remove
and replace up to 5 directors.
(ii) if at any time, the percentage in nominal value of the
issued ordinary share capital from time to time of the
Company of which News shall be the beneficial owner
shall fall below the percentages stated below, News Corp
or any such subsidiary of News Corp as is referred to in
(i) above shall only have the right to appoint, remove
and replace the number of directors set against that
percentage set out below:
% Number
---- ------
30.0 4
25.0 3
20.0 2
15.0 1
7.5 0
(b) (i) for so long as Pathe remains the beneficial owner of
not less than 15 per cent. in nominal value of the
issued ordinary share capital from time to time of the
Company, Pathe itself or such subsidiary of Pathe which
is the beneficial owner of the majority of the ordinary
shares in the capital of the Company beneficially owned
by Pathe, shall have the right to appoint, remove and
replace up to two directors.
(ii) if at any time, Pathe shall cease to be the beneficial
owner of not less than 15 per cent. in nominal value of
the issued
30
ordinary share capital from time to time of the Company
but shall remain the beneficial owner of not less than
7.5 per cent. in nominal value of the issued share
capital from time to time of the Company, Pathe itself
or any such subsidiary of Pathe as is referred to in (i)
above, shall have the right to appoint, remove and
replace one director.
(c) each of Granada Group PLC itself and BSB Holdings Limited
itself (or, in each case, such subsidiary which is the
beneficial owner of the majority of the ordinary shares in the
capital of the Company beneficially owned by Granada or BSBH)
shall have the right to appoint, remove and replace one
director for so long as Granada or BSBH (as the case may be)
remains the beneficial owner of not less than 7.5 per cent. in
nominal value of the issued ordinary share capital from time
to time of the Company.
(2) For the purposes of articles 106(1), 106(3), 106(4) and 106(10):
(a) each of Pathe and Granada shall be deemed to be the beneficial
owner of its proportionate interest in issued ordinary shares
of the Company held by BSBH and, for these purposes,
proportionate interest shall mean such number of issued
ordinary shares of the Company as shall bear the same
proportion to the total number of issued ordinary shares of
the Company held by BSB Holdings Limited as the proportion
which the issued ordinary shares of BSB Holdings Limited
itself held by Pathe or Granada (as the case may be) bear to
the total number of issued ordinary shares of BSBH itself in
issue at the relevant time; and
(b) where:
(ii) issued ordinary shares of the Company are held by any
subsidiary of BSB Holdings Limited, Pathe, Granada Group
PLC or News Corp which is not a wholly-owned subsidiary
of (as the case may be) BSB Holdings Limited, Pathe,
Granada Group PLC or News Corp. or one of their
respective wholly-owned subsidiaries, or
(iii) issued ordinary shares of BSB Holdings Limited are held
by any subsidiary of Pathe or Granada Group PLC which is
not a wholly-owned subsidiary of (as the case may be)
Pathe or Granada Group PLC, or one of their respective
wholly-owned subsidiaries, then beneficial ownership
shall be attributed to BSB Holdings Limited, Pathe,
Granada Group PLC or News Corp or one of their
respective wholly-owned subsidiaries (as the case may
be) of such proportion of the issued ordinary shares of
the Company or (as the case may be) BSB Holdings Limited
held by such non wholly-owned subsidiary, as shall be
equal to the proportionate interest of BSB Holdings
Limited, Pathe, Granada Group PLC or News Corp in such
wholly-owned subsidiary. For this purpose proportionate
interest shall mean the proportion which the total
number of issued ordinary shares of the relevant non
wholly-owned
31
subsidiary held by BSB Holdings Limited, Pathe, Granada
Group PLC or News Corp bears to the total number of issued
ordinary shares of such non wholly-owned subsidiary at the
relevant time.
(3) The rights of each of the Principal Shareholders set out in article
106(1) shall cease or reduce (as the case may be) if that Principal
Shareholder's beneficial ownership of issued ordinary shares of the
Company falls below the relevant percentages stated in article
106(1) and such rights may not be reacquired, provided always that,
where such fall is caused by an issue of ordinary shares of the
Company (other than on a pro rata basis to the holders from time to
time of ordinary shares of the Company), that Principal Shareholder
shall reacquire such rights if it increases its beneficial ownership
of issued ordinary shares of the Company to at least the relevant
percentage within 30 days of such issue of ordinary shares.
(4) If, at any time, a Principal Shareholder ceases to be the beneficial
owner of such percentage of the issued ordinary share capital of the
Company as would entitle it to appoint any director or directors
(whether or not the relevant Principal Shareholder would remain
entitled to appoint other directors), the relevant Principal
Shareholder shall procure that such number of directors appointed by
it shall offer their resignations to the board of directors at its
next meeting which, if accepted, would result in that Principal
Shareholder being represented on the board of directors of the
Company by the maximum number of directors to which it is entitled
in accordance with the thresholds set out in article 106(1). Such
resignations shall be accepted at that next meeting unless the
directors (excluding any director appointed by the relevant
Principal Shareholder) resolve not to accept any such resignation in
which case the relevant director (if he consents) shall remain a
director provided that such director shall thereafter be subject to
retirement by rotation in accordance with these articles. If a
Principal Shareholder shall fail, when required by this article
106(4) to procure any resignation required by this article 106(4) to
be preferred, then the directors (other than the directors appointed
by that Principal Shareholder) shall be entitled to remove the
requisite number of directors appointed by that Principal
Shareholder.
(5) Subject to article 106(4) above, the directors appointed by any of
the Principal Shareholders pursuant to this article 106 shall not be
subject to retirement by rotation.
(6) Any director appointed by a Principal Shareholder shall forthwith
cease to hold his office either upon a notice of removal being
delivered to the Office at any time signed by or on behalf of that
Principal Shareholder, or by the directors in accordance with
article 106(4), and in each such event that director shall have no
claim for compensation for loss of office against the Company in
respect thereof.
(7) Every appointment and removal of a director by a Principal
Shareholder under this article 100 shall be effected by notice in
writing signed by or on behalf of the relevant Principal
Shareholder, or by the relevant directors where the removal is in
accordance with article 106(4), and shall take effect upon receipt
32
of the same at the Office or as and from such later date (if any) as
may be specified in such notice.
(8) Without prejudice to article 129, no director appointed by a
Principal Shareholder pursuant to this article 106 shall vote, or be
counted in the quorum present, at a meeting of the directors (or at
a meeting of a committee of the directors) on any resolution
concerning any material matter in which that Principal Shareholder
has, directly or indirectly, an interest (other than an interest in
shares, debentures or other securities of, or otherwise in or
through, the Company). For the purposes of this article 106(8), the
directors not appointed by any Principal Shareholder ("the
Non-Principal Shareholder Directors") shall agree from time to time
the criteria for determining whether a matter is a material matter
and the opinion of the Non-Principal Shareholder Directors as to
whether a matter is a material matter and whether a Principal
Shareholder is interested in a material matter shall be final and
conclusive. Any determination by the Non-Principal Shareholder
Directors that a Principal Shareholder is not interested in a
material matter for the purposes of these articles shall continue in
force until revoked by such directors. Each Principal Shareholder
who is in any way, whether directly or indirectly, interested in any
transaction, agreement or arrangement (including any proposed
transaction, agreement or arrangement) with the Company or any of
its subsidiaries shall procure that the nature and extent of its
interest is declared forthwith at a meeting of the directors.
(9) Each Principal Shareholder shall furnish to the directors such
information as they may from time to time reasonably require to
satisfy themselves as to the number of issued ordinary shares of the
Company of which that Principal Shareholder is the beneficial owner.
If a Principal Shareholder defaults in furnishing such information,
the directors may determine that that Principal Shareholder is the
beneficial owner only of a specified number of issued ordinary
shares of the Company or of no such shares. Thereupon, for the
purposes of this article 106, that Principal Shareholder shall be
deemed to be the beneficial owner of only that number of issued
ordinary shares of the Company or, as the case may be, of no such
shares, provided that the directors shall rescind or modify any such
determination if they have been furnished with evidence which they
determine justifies such rescission or modification. No Principal
Shareholder shall be deemed not to be the beneficial owner of a
share merely by reason of the fact that such share is subject to a
charge, pledge, lien or similar encumbrance in favour of another
person.
(10) The Principal Shareholders have the following rights to appoint and
remove members of any standing committee established by the board of
directors of the Company:
(a) for so long as News remains the beneficial owner of not less
than 15 per cent. in nominal value of the issued ordinary
share capital from time to time of the Company, News Corp. or
such subsidiary of News Corp, which is the beneficial owner of
the majority of the ordinary shares in the capital of the
Company beneficially owned by News, shall have the right to
appoint, remove and replace up to two members of any such
committee; and
33
(b) for so long as each of News (in circumstances where (a) above
does not apply) and Pathe remains the beneficial owner of not
less than 7.5 per cent. in nominal value of the issued
ordinary share capital of the Company, each of News Corp and
Pathe, or, in each case, such subsidiary which is the
beneficial owner of the majority of the ordinary shares in the
capital of the Company beneficially owned by News or Pathe,
shall have the right to appoint, remove and replace one member
of any such committee
and for the purposes of this article 106(10), the other provisions
of this article 100 (other than articles 106(1) and 106(5)) shall
apply to the Principal Shareholders' rights to appoint, remove and
replace members of such committees as if they were incorporated,
mutatis mutandis, herein.
107. [Note - This Article was deleted pursuant to a special resolution passed
at the Company's annual general meeting on 3rd November 2000.]
108. (1) At the annual general meeting in every year there shall retire
from office by rotation:
(a) all Eligible Directors who held office at the time of the two
preceding annual general meetings and who did not retire by
rotation at either of them; and
(b) such additional number of Eligible Directors as shall, when
aggregated with the number of directors retiring under
paragraph (a) above, equal the Relevant Proportion, provided
that:
(i) the provisions of this paragraph (b) shall only apply if
the number of directors retiring under paragraph (a)
above is less than the Relevant Proportion; and
(ii) subject to the provisions of the Act and to the
following provisions of these articles, the Eligible
Directors to retire under this paragraph (b) shall be
those who have been longest in office since their last
appointment or reappointment, but as between persons who
became or were last reappointed directors on the same
day those to retire shall (unless they otherwise agree
among themselves) be determined by lot.
(2) In this article 108:
(a) "Eligible Directors" shall mean those directors of the Company
who are subject to retirement by rotation;
(b) "Relevant Proportion" shall mean:
(iii) one-third of the number of Eligible Directors, in
circumstances where the number of Eligible Directors is
three or a multiple of three; or
34
(iv) in all other circumstances, the whole number which is
nearest to but does not exceed one-third of the number
of Eligible Directors.
109. Subject to the provisions of the Act and of article 106(5) and subject to
the following provisions of these articles, the directors to retire by
rotation shall include (so far as is necessary to obtain the number
required) any director who wishes to retire and not to offer himself for
re-election and otherwise shall be those who, at the date of the notice of
meeting, have been longest in office since their last appointment or
reappointment, but as between persons who became or were last reappointed
directors on the same day those to retire shall (unless they otherwise
agree among themselves) be determined by lot.
110. If the Company, at the meeting at which a director retires by rotation,
does not fill the vacancy the retiring director shall, if willing to act,
be deemed to have been reappointed unless at the meeting it is resolved
not to fill the vacancy or a resolution for the reappointment of the
director is put to the meeting and lost.
111. No person other than a director retiring at the meeting shall be appointed
or reappointed a director at any general meeting unless:
(a) he is recommended by the directors; or
(b) not less than seven nor more than forty-two days before the date
appointed for holding the meeting, notice executed by a member
qualified to vote on the appointment or reappointment has been given
to the Company of the intention to propose that person for
appointment or reappointment, stating the particulars which would,
if he were appointed or reappointed, be required to be included in
the Company's register of directors, together with notice executed
by that person of his willingness to be appointed or reappointed.
112. At a general meeting a motion for the appointment of two or more persons
as directors by a single resolution shall not be made, unless a resolution
that it shall be so made has been first agreed to by the meeting without
any vote being given against it, and for the purposes of this article a
motion for approving a person's appointment or for nominating a person for
appointment shall be treated as a motion for his appointment.
113. Subject as aforesaid, the Company may by ordinary resolution appoint a
person who is willing to act to be a director, either to fill a vacancy or
as an additional director, and may also determine the rotation in which
any additional directors are to retire.
114. The directors may appoint a person who is willing to act to be a director,
either to fill a vacancy or as an additional director, provided that the
appointment does not cause the number of directors to exceed any number
fixed as the maximum number of directors. A director so appointed (not
being a director appointed by a Principal Shareholder) shall retire at the
next following annual general meeting and shall not be taken into account
in determining the directors who are to retire by rotation at the meeting.
115. Subject as aforesaid, a director who retires at an annual general meeting
may be reappointed. If he is not reappointed or deemed to have been
reappointed, he shall
35
retain office until the meeting appoints someone in his place or, if it
does not do so, until the end of the meeting.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
116. Without prejudice to the provisions of the Act, the Company may, by
extraordinary resolution, remove a director before the expiration of his
period of office (but such removal shall be without prejudice to any claim
to damages for breach of any contract of service between the director and
the Company) and, subject to these articles, may, by ordinary resolution,
appoint another person instead of him. A person so appointed shall be
subject to retirement at the same time as if he had become a director on
the day on which the director in whose place he is appointed was last
appointed or reappointed a director unless such director was a director
appointed by a Principal Shareholder, in which event the new director
shall be subject to retirement in accordance with articles 108 and 109.
117. The office of a director shall be vacated if:
(a) he ceases to be a director by virtue of any provision of the Act or
he becomes prohibited by law from being a director; or
(b) he becomes bankrupt or makes any arrangement or composition with his
creditors generally; or
(c) he is, or may be, suffering from mental disorder and either:
(i) he is admitted to hospital in pursuance of an application for
admission for treatment under the Mental Health Act 1983 or,
in Scotland, an application for admission under the Mental
Health (Scotland) Act 1984, or
(ii) an order is made by a court having jurisdiction (whether in
the United Kingdom or elsewhere) in matters concerning mental
disorder for his detention or for the appointment of any
person to exercise powers with respect to his property or
affairs; or
(d) he resigns his office by notice in writing to the Company; or
(e) in the case of a director who holds any executive office, his
appointment as such is terminated or expires; or
(f) he is absent for more than six consecutive months without permission
of the directors from meetings of the directors held during that
period and the directors resolve that his office be vacated; or
(g) he (not being a director appointed by a Principal Shareholder) is
requested in writing or using electronic communications by all the
other directors to resign; or
(h) he is removed in accordance with article 106(4).
118. No person shall be disqualified from being appointed or reappointed as a
director and no director shall be requested to vacate that office by
reason of his attaining the age of seventy or any other age; nor shall it
be necessary by reason of his age to give special
36
notice under the Act of any resolution appointing, reappointing or
approving the appointment of a director. Where a general meeting is
convened at which a director will be proposed for appointment or
reappointment who, to the knowledge of the directors, will be seventy or
more at the date of the meeting, the directors shall give notice of his
age in the notice convening the meeting or in any document sent with it;
but the accidental omission to do so shall not invalidate any proceedings
at the meeting or any appointment or reappointment of the director
concerned.
DIRECTORS' APPOINTMENTS AND INTERESTS
119. The directors may appoint one or more of their number to the office of
chief executive or to any other executive office under the Company and,
subject to the provisions of the Act, any such appointment may be made for
such term, at such remuneration and on such other conditions as the
directors think fit. A chief executive shall be subject to retirement by
rotation.
120. (1) Subject to the provisions of the Act, and provided that he has
disclosed to the directors the nature and extent of any material
interest of his, a director notwithstanding his office:
(a) may be a party to, or otherwise interested in, any transaction
or arrangement with the Company or in which the Company is
otherwise interested;
(b) may (or any firm of which he is a member may) act in a
professional capacity for the Company or any other body
promoted by the Company or in which the Company is otherwise
interested;
(c) 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 is otherwise interested; and
(d) may retain for his own absolute use and benefit all profits
and advantages accruing to him under or in consequence of any
such office or employment or from acting in such professional
capacity, 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.
(2) For the purposes of this article:
(a) 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
37
(b) 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.
DIRECTORS' GRATUITIES AND PENSIONS
121. The directors may provide benefits, whether by the payment of gratuities
or pensions or by insurance or otherwise, for any director who has held
but no longer holds any executive office or employment with the Company or
with any body corporate which is or has been a subsidiary of the Company
or a predecessor in business of the Company or of any such subsidiary, and
for any member of his family (including a spouse and a former spouse) or
any person who is or was dependent on him and may (as well before as after
he ceases to hold such office or employment) contribute to any fund and
pay premiums for the purchase or provision of any such benefit.
PROCEEDINGS OF DIRECTORS
122. (1) Subject to the provisions of these articles, the directors may
regulate their proceedings as they think fit.
(2) A director may, and the secretary at the request of a director
shall, call a meeting of the directors by notice in writing. A
notice of a meeting of the directors shall be deemed to be properly
given to a director if given to him personally or sent to him at his
last known address or any other address given by him to the Company
for this purpose.
(3) Questions arising at a meeting shall be decided by a majority of
votes. A director who is also an alternate director shall be
entitled in the absence of his appointor to a separate vote on
behalf of his appointor in addition to his own vote; and an
alternate director who is appointed by two or more directors shall
be entitled to a separate vote on behalf of each of his appointors
in the appointor's absence.
123. No business shall be transacted at any meeting of the directors unless a
quorum is present. The quorum shall be three provided that no meeting
shall be quorate unless a majority of the directors present are neither
directors appointed by a controlling shareholder nor directors holding an
executive office. For these purposes, a "controlling shareholder" shall be
a person who is (i) entitled to exercise or to control the exercise of 30
per cent. or more of the rights to vote at general meetings of the Company
or (ii) able to control the appointment of directors who are able to
exercise a majority of votes at meetings of the directors. An alternate
director who is not himself a director shall, if his appointor is not
present but is entitled to be counted in the quorum, be counted in the
quorum.
124. The continuing directors or a sole continuing director may act
notwithstanding any vacancies in their number, but, if the number of
directors is less than the number fixed as the quorum, the continuing
directors or director may act only for the purpose of filling vacancies or
of calling a general meeting.
125. The directors may at any time elect from their number, and remove, a
chairman of the board of directors. The chairman shall preside at all
meetings of the directors, but if there is no chairman, or if at the
meeting the chairman is not present within five
38
minutes after the time appointed for the meeting, or if the Chairman is
not willing to act as chairman, the directors present may choose one of
their number to be chairman of the meeting.
126. All acts done by a meeting of the directors, or of a committee of the
directors, or by a person acting as a director, shall notwithstanding that
it may afterwards be discovered that there was a defect in the appointment
of any director or that any of them were disqualified from holding office,
or had vacated office, or were not entitled to vote, or that the meeting
was not quorate (provided that the directors present at the inquorate
meeting believed, in good faith, that the meeting was quorate and made all
such enquiries as were reasonable in the circumstances to establish that
the meeting was quorate), 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 and that the meeting was quorate.
127. A resolution in writing executed by all the directors entitled to receive
notice of a meeting of the directors or of a committee of the directors
shall be as valid and effectual as if it had been passed at a meeting of
the directors or (as the case may be) of that committee, duly convened and
held, and may consist of several documents in the like form each executed
by one or more directors, but a resolution executed by an alternate
director need not also be executed by his appointor and, if it is executed
by a director who has appointed an alternate director, it need not also be
executed by the alternate director in that capacity.
128. Without prejudice to the first sentence of article 122, a meeting of the
directors or of a committee of the directors may consist of a conference
between directors who are not all in one place, but each of whom is able
(directly or by telephonic communication) to speak to each of the others,
and to be heard by each of the others simultaneously. A director taking
part in such a conference shall be deemed to be present in person at the
meeting and shall be entitled to vote and be counted in the quorum
accordingly and the word "meeting" in these articles shall be construed
accordingly.
129. (1) Save as otherwise provided by these articles, a director shall
not vote at a meeting of the directors (or at a meeting of a
committee consisting of one or more directors) on any resolution
concerning a matter in which he has, directly or indirectly, a
material interest (other than an interest in shares, debentures or
other securities of, or otherwise in or through, the Company),
unless his interest arises only because the case falls within one or
more of the following sub-paragraphs:
(a) the resolution relates to the giving to him of a guarantee,
security, or indemnity in respect of money lent to, or an
obligation incurred by him at the request of, or for the
benefit of, the Company or any of its subsidiaries;
(b) the resolution relates to the giving to a third party of a
guarantee, security, or indemnity in respect of a debt or
obligation of the Company or any of its subsidiaries for which
the director has assumed responsibility in whole or part and
whether alone or jointly with others under a guarantee or
indemnity or by the giving of security;
39
[(c) his interest arises by virtue of his being, or intending to
become, a participant in the underwriting or sub-underwriting
of an offer of any shares in or debentures or other securities
of the Company for subscription, purchase or exchange;
(d) the resolution relates in any way to a superannuation fund or
retirement benefits scheme which has been approved, or is
conditional upon approval, by the Board of Inland Revenue for
taxation purposes;
(e) the resolution relates to an arrangement for the benefit of
the employees of the Company or any of its subsidiaries,
including, but without being limited to, an employees' share
scheme which has been approved, or is conditional upon
approval, by the Board of Inland Revenue for taxation
purposes, which does not accord to any director as such any
privilege or advantage not generally accorded to the employees
to whom the arrangement relates;
(f) the resolution relates to a transaction or arrangement with
any other company in which he is interested, directly or
indirectly whether as an officer, shareholder or otherwise
howsoever, provided that he (together with persons connected
with him) is not the holder of or beneficially interested in
one per cent. or more of the equity share capital of that
company (or of any other company through which his interest is
derived) and not entitled to exercise one per cent. or more of
the voting rights available to members of the relevant company
(and for the purpose of calculating the said percentage there
shall be disregarded any shares held by the director as a bare
or custodian trustee and in which he has no beneficial
interest, and any shares comprised in any authorised unit
trust scheme in which the director is interested only as a
unit holder);
(g) the resolution relates to the purchase or maintenance for any
director or directors of insurance against any liability.
(2) For the purposes of paragraph (1) of this article, an interest of
any person who is for any purpose of the Act (excluding any
statutory modification thereof not in force when these articles
became binding on the Company) connected with a director shall be
taken to be the interest of that director and, in relation to an
alternate director, an interest of his appointor shall be treated as
an interest of the alternate director without prejudice to any
interest which the alternate director has otherwise.
(3) Where proposals are under consideration concerning the appointment
(including the fixing or varying of terms of appointment) of two or
more directors to offices or employments with the Company or any
body corporate in which the Company is interested, the proposals may
be divided and considered in relation to each director separately
and (provided he is not by virtue of paragraph (1)(f) of this
article, or otherwise under that paragraph, or for any other reason,
precluded from voting) each of the directors concerned shall be
entitled to vote and be counted in the quorum in respect of each
resolution except that concerning his own appointment.
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130. A director shall not be counted in the quorum present at a meeting in
relation to a resolution on which he is not entitled to vote.
131. The Company may by ordinary resolution suspend or relax to any extent,
either generally or in respect of any particular matter, any provision of
these articles prohibiting a director from voting at a meeting of the
directors or of a committee of the directors or ratio any transaction not
duly authorised by reason of contravention of any such provision.
132. If a question arises at a meeting of the directors as to the right of a
director to vote, the question may, before the conclusion of the meeting,
be decided by a resolution of a majority of the Non-Principal Shareholder
Directors (other than the director concerned, if he is a Non-Principal
Shareholder Director) and such resolution shall be final and conclusive.
MINUTES
133. The directors shall cause minutes to be made in books kept for the
purpose:
(a) of all appointments of officer made by the directors; and
(b) of all proceedings at meetings of the Company, of the holders of any
class of shares in the Company, and of the directors, and of
committees of the directors, including the names of the directors
present at each such meeting.
Any such minutes, if purporting to be signed by the chairman of the
meeting to which they relate or of the meeting at which they are read,
shall be sufficient evidence without any further proof of the facts
therein stated.
SECRETARY
134. Subject to the provisions of the Act, the secretary shall be appointed
by the directors for such term, at such remuneration and on such other
conditions as they think fit; and any secretary so appointed may be
removed by them.
THE SEAL
135. The seal shall be used only by the authority of a resolution of the
directors or of a committee of the directors. The directors may determine
whether any instrument to which the seal is affixed, shall be signed and,
if it is to be signed, who shall sign it. Unless otherwise determined by
the directors:
(a) share certificates and, subject to the provisions of any instrument
constituting the same, certificates issued under a seal in respect
of any debentures or other securities, need not be signed and any
signature may be applied to any such certificate by any mechanical
or other means or may be printed on it; and
(b) every other instrument to which the seal is affixed shall be signed
by one director and by the secretary or another director.
136. Subject to the provisions of the Act, the Company may have an official
seal for use in any place.
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DIVIDENDS
137. Subject to the provisions of the Act, the Company may by ordinary
resolution declare dividends in accordance with the respective rights of
the members, but no dividend shall exceed the amount recommended by the
directors.
138. Subject to the provisions of the Act, the directors may pay interim
dividends of such amounts and on such dates and in respect of such periods
as they may think fit 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 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 no interim dividend shall be paid on shares carrying
deferred or non-preferred rights if at the time of payment, any
preferential dividend is in arrear. 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. If 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.
139. Except as otherwise provided by these articles or the rights attached to
shares, all dividends shall be declared and paid according to the amounts
paid up on the shares on which the dividend is paid. If any share is
issued on terms that it ranks for dividend as from a particular date, it
shall rank for dividend accordingly. In any other case (and except as
aforesaid), dividends shall be apportioned and paid proportionately to the
amounts paid up on the shares during any portion or portions of the period
in respect of which the dividend is paid. For the purpose of this article,
an amount paid up on a share in advance of a call shall be treated, in
relation to any dividend declared after the payment but before the call,
as not paid up on the share.
140. A general meeting declaring a dividend may, upon the recommendation of the
directors, by ordinary resolution direct that it shall be satisfied wholly
or partly by the distribution of assets and, where any difficulty arises
in regard to the distribution, the directors may settle the same as they
think fit and in particular (but without limitation) may issue fractional
certificates (or ignore fractions) and fix the value for distribution of
any assets, and may determine that cash shall be paid to any member upon
the footing of the value so fixed in order to adjust the rights of
members, and may vest any assets in trustees.
141. (1) Any dividend or other money payable in respect of a share may be
paid by cheque or warrant sent by post to the registered address of
the person entitled or, if two or more persons are the holders of
the share or are jointly entitled to it by reason of the death or
bankruptcy of the holder, to the registered address of that one of
those persons who is first named in the register of members or to
such person and to such address as the person or persons entitled
may in writing direct. Every cheque or warrant shall be made payable
to the order of or to the person or persons entitled or to such
other person as the person or persons entitled may in writing direct
and payment of the cheque or warrant shall be a good discharge to
the Company. Any such dividend or other money may also be paid by
any other method (including direct debit and bank transfer) which
the directors consider appropriate. Any joint holder or other
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person jointly entitled to a share as aforesaid may give receipts
for any dividend or other money payable in respect of the share.
(2) The Company may cease to send any cheque or warrant (or to use any
other method of payment) for any dividend payable in respect of a
share if:
(a) in respect of at least two consecutive dividends payable on
that share the cheque or warrant has been returned undelivered
or remains uncashed (or that other method of payment has
failed); or
(b) following one such occasion, reasonable enquiries have failed
to establish any new address of the holder,
but, subject to the provisions of these articles, shall recommence
sending cheques or warrants (or using another method of payment) for
dividends payable on that share if the person or persons entitled so
request.
142. No dividend or other money payable in respect of a share shall bear
interest against the Company, unless otherwise provided by the rights
attached to the share.
143. Any dividend which has remained unclaimed for twelve years from the date
when it became due for payment shall, if the directors so resolve, be
forfeited and cease to remain owing by the Company.
144. The directors may, with the authority of an ordinary resolution of the
Company, offer any holders of ordinary shares the right to elect to
receive ordinary shares, credited as fully paid, instead of cash in
respect of the whole (or some part, to be determined by the directors) of
any dividend specified by the ordinary resolution. The following
provisions shall apply:
(a) The said resolution may specify a particular dividend (whether or
not declared), or may specify all or any dividends declared or
payable within a specified period, but such period may not end later
than the beginning of the fifth annual general meeting next
following the date of the meeting at which the ordinary resolution
is passed.
(b) The entitlement of each holder of ordinary shares to new ordinary
shares shall be such that the relevant value of the entitlement
shall be as nearly as possible equal to (but not greater than) the
cash amount (disregarding any tax credit) that such holder would
have received by way of dividend. For this purpose "relevant value"
shall be calculated by reference to the average of the middle market
quotations for the Company's ordinary shares on the London Stock
Exchange as derived from the Daily Official List, for the day on
which the ordinary shares are first quoted "ex" the relevant
dividend and the four subsequent dealing days, or in such other
manner as may be determined by or in accordance with the ordinary
resolution. A certificate or report by the auditors as to the amount
of the relevant value in respect of any dividend shall be conclusive
evidence of that amount.
(c) No fraction of a share shall be allotted and the directors may deal
with any fractions which arise as they think fit.
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(d) The directors shall, after determining the basis of allotment,
notify the holders of ordinary shares in writing of the right
of election offered to them, and specify the procedure to be
followed and place at which, and the latest time by which,
elections must be lodged in order to be effective.
(e) The directors may exclude from any offer any holders of
ordinary shares where the directors believe that the making of
the offer to them would or might involve the contravention of
the laws of any territory or that for any other reason the
offer should not be made to them.
(f) The dividend (or that part of the dividend in respect of which
a right of election has been given) shall not be payable on
ordinary shares in respect of which an election has been duly
made ("the elected ordinary shares") and instead additional
ordinary shares shall be allotted to the holders of the
elected ordinary shares on the basis of allotment determined
as aforesaid. For such purpose the directors shall capitalise
out of any amount for the time being standing to the credit of
any reserve or fund (including any share premium account or
capital redemption reserve) or any of the profits which could
otherwise have been applied in paying dividends in cash, as
the directors may determine, a sum equal to the aggregate
nominal amount of the additional ordinary shares to be
allotted on that basis and apply it in paying up in full the
appropriate number of unissued ordinary shares for allotment
and distribution to the holders of the elected ordinary shares
on that basis.
(g) The directors shall not proceed with any election unless the
Company has sufficient unissued shares authorised for issue
and sufficient reserves or funds that may be capitalised to
give effect to it after the basis of allotment is determined.
(h) The additional ordinary shares when allotted shall rank pail
passu in all respects with the fully paid ordinary shares then
in issue except that they will not be entitled to
participation in the dividend in lieu of which they were
allotted.
(i) The directors may do all acts and things which they consider
necessary or expedient to give effect to any such
capitalisation, and may authorise any person to enter on
behalf of all the members interested into an agreement with
the Company providing for such capitalisation and incidental
matters and any agreement so made shall be binding on all
concerned.
CAPITALISATION OF PROFITS
145. (1) The directors may with the authority of an ordinary resolution
of the Company:
(a) subject as hereinafter provided, resolve to capitalise any
undivided profits of the Company not required for paying any
preferential dividend (whether or not they are available for
distribution) or any sum standing to the credit of any reserve
or fund of the Company (including any share premium account or
capital redemption reserve);
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(b) appropriate the sum resolved to be capitalised to the members
in proportion to the nominal amounts of the shares (whether or
not fully paid) held by them respectively which would entitle
them to participate in a distribution of that sum if the
shares were fully paid and the sum were then distributable and
were distributed by way of dividend and apply such sum on
their behalf either in or towards paying up the amounts, if
any, 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 that
sum, and allot the shares or debentures credited as fully paid
to those members or as they may direct, in those proportions,
or partly in one way and partly in the other, but the share
premium account, the capital redemption reserve, and any
profits which are not available for distribution may, for the
purposes of this article, only be applied in paying up
unissued shares to be allotted to members credited as fully
paid;
(c) resolve that any shares so allotted to any member in respect
of a holding by him of any partly paid shares shall so long as
such shares remain partly paid rank for dividend only to the
extent that the latter shares rank for dividend;
(d) make such provision by the issue of fractional certificates
(or by ignoring fractions) or by payment in cash or otherwise
as they determine in the case of shares or debentures becoming
distributable in fractions;
(e) 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, of any
further shares to which they are entitled upon such
capitalisation, any agreement made under such authority being
binding on all such members; and
(f) generally do all acts and things required to give effect to
such resolution as aforesaid.
(2) Where, pursuant to an employees' share scheme (within the meaning of
section 743 of the Act) the Company has granted options to subscribe
for shares on terms which provide (inter alia) for adjustments to
the subscription price payable on the exercise of such options or to
the number of shares to be allotted upon such exercise in the event
of any increase or reduction in or other reorganisation of the
Company's issued share capital and an otherwise appropriate
adjustment would result in the subscription price for any share
being less than its nominal value, then, subject to the provisions
of the Act, the directors may, on the exercise of any of the options
concerned and payment of the subscription price which would have
applied had such adjustment been made, capitalise any such profits
or other sum as is mentioned in paragraph (1)(a) above to the extent
necessary to pay up the unpaid balance of the nominal value of the
shares which fall to be allotted on the exercise of such options and
apply such amount in paying up such balance and allot shares fully
paid accordingly. The provisions of paragraph (1)(a) to (f) above
shall
45
apply mutatis mutandis to this paragraph (but as if the authority of
an ordinary resolution of the Company were not required).
RECORD DATES
146. Notwithstanding any other provision of these articles, but without
prejudice to the rights attached to any shares, the Company or the
directors may fix a date as the record date by reference to which a
dividend will be declared or paid or a distribution, allotment or issue
made, and that date may be before, on or after the date on which the
dividend, distribution, allotment or issue is declared, paid or made (as
the case may be). Where such a record date is fixed, references in these
articles to a holder of shares or member to whom a dividend is to be paid
or a distribution, allotment or issue is to be made shall be construed
accordingly.
ACCOUNTS
147. No member (other than a director) shall have any right of inspecting any
accounting record or other document of the Company, unless he is
authorised to do so by statute, by order of the court, by the directors or
by ordinary resolution of the Company.
NOTICES ETC.
148. Any notice to be given to or by any person pursuant to these articles
shall be in writing or, if the directors so permit, given using electronic
communications, except that a notice calling a meeting of the directors
need not be either in writing or given using electronic communication.
149. The Company may give any notice to a member either personally or by
sending it by post in a prepaid envelope addressed to the member at his
registered address or by leaving it at that address or by giving it using
electronic communication to an address for the time being notified by the
member to the Company for that purpose.
150. Notice is also to be treated as given to a member where:
(a) the Company and the member have agreed that such notices to be given
to that member may instead be accessed by him on a web site;
(b) that member is notified, in a manner for the time being agreed
between him and the Company for the purpose, of:
(i) the publication of the notice on a web site;
(ii) the address of that web site;
(iii) the place on that web site where the notice may be accessed,
and how it may be accessed; and
(c) where the notice in question is a notice of a meeting, the notice
continues to be published on that web site throughout the period
beginning with the giving of that notification and ending with the
conclusion of the meeting, save that if the notice is published for
part only of that period then failure to publish the notice
throughout that period shall not invalidate the proceedings of the
meeting where such failure is wholly attributable to circumstances
which it would not be reasonable to have expected the Company to
prevent or avoid and provided
46
always that Article 65 shall apply to such notice as it does to any
other notice of meeting.
151. In the case of joint holders of a share, all notices shall be given to the
joint holder whose name stands first in the register of members in respect
of the joint holding and notice so given shall be sufficient notice to all
the joint holders. A member whose registered address is not within the
United Kingdom and who gives to the Company an address not being an
address for the purpose of electronic communications within the United
Kingdom at which notices may be given to him shall be entitled to have
notices given to him at that address, but otherwise no such member shall
be entitled to receive any notice from the Company.
152. A member present either in person or by proxy, or in the case of a
corporate member by a duly authorised representative, at any meeting of
the Company or of the holders of any class of shares shall be deemed to
have received notice of the meeting and, where requisite, of the purposes
for which it was called.
153. (1) Any notice to be given to a member may be given by reference to
the register of members as it stands at any time within the period
of fifteen days before the notice is given; and no change in the
register after that time shall invalidate the giving of the notice.
(2) 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 of members, has been given to the person from whom he
derives his title; but this paragraph does not apply to a notice
given under section 212 of the Act.
154. Where, by reason of the suspension or curtailment of postal services
within the United Kingdom, the Company is unable effectively to give
notice of a general meeting by post the general meeting may be convened by
notice advertised in two national daily newspapers published in the United
Kingdom. The Company shall send a copy of the notice to members in the
same manner as it sends notices under article 149 if at least seven clear
days before the meeting the posting of notices to addresses throughout the
United Kingdom again becomes practicable.
155. Any notice to be given by the Company to the members or any of them, and
not provided for by or pursuant to these articles, shall be sufficiently
given if given by advertisement in at least one leading national daily
newspaper published in the United Kingdom.
156. A notice sent by post shall be deemed to have been given on the day
following that on which the envelope containing the notice was posted
unless it was sent by second class post or there is only one class of post
in which case it shall be deemed to have been given on the day next but
one after it was posted. Proof that the envelope was properly addressed,
prepaid and posted shall be conclusive evidence that notice was given. A
notice given by advertisement shall be deemed to have been served on the
day on which the advertisement appears. A notice contained in an
electronic communication shall be deemed to have been given on the day
following that on which it was sent or, in the case of the publication of
a notice on a web site, on the day following that on which the member is
notified of such publication in accordance with Article 150. Proof that a
notice contained in an electronic communication was sent in accordance
with the Institute of Chartered Secretaries and Administrators'
47
Guidance (in issue at the time the relevant notice was given) shall be
conclusive evidence that notice was given.
157. A notice may be given by the Company to the person 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 that person by name, or by the title of
representative of the deceased or trustee of the bankrupt or by any like
description, at the address, if any, within the United Kingdom supplied
for that purpose by the person claiming to be so entitled. 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.
158. Subject to the provisions of the Act, if on three consecutive occasions
notices or other communications have been sent by post to a member at his
registered address (or, in the case of a member whose registered address
is not within the United Kingdom, any address given by him to the Company
for the service of notices within the United Kingdom, not being an address
for the purposes of electronic communications) but have been returned
undelivered, the member shall not be entitled to receive any subsequent
notice or other communication until he has given to the Company a new
registered address (or, in the case of a member whose registered address
is not within the United Kingdom, a new address for the service of notices
within the United Kingdom, not being an address for the purpose of
electronic communications). For the purposes of this article, references
to a communication include references to any cheque or other instrument of
payment; but nothing in this article shall entitle the Company to cease
sending any cheque or other instrument of payment for any dividend, unless
it is otherwise so entitled under these articles.
DESTRUCTION OF DOCUMENTS
159. (1) The Company may destroy:
(a) any instrument of transfer, after six years from the date on
which it is registered;
(b) any dividend mandate or notification of change of name or
address, after two years from the date on which it is
recorded;
(c) any share certificate, after one year from the date on which
it is cancelled; and
(d) any other document on the basis of which an entry in the
register of members is made, after six years from the date on
which it is made.
(2) Any document referred to in paragraph (1) of this article may be
destroyed earlier than the relevant date authorised by that
paragraph, provided that a permanent record of the document is made
which is not destroyed before that date.
(3) It shall be conclusively presumed in favour of the Company that
every entry in the register of members purporting to have been made
on the basis of a document destroyed in accordance with this article
was duly and properly made, that every instrument of transfer so
destroyed was duly registered, that every share certificate so
destroyed was duly cancelled, and that every other
48
document so destroyed was valid and effective in accordance with the
particulars in the records of the Company, provided that:
(a) this article shall apply only to the destruction of a document
in good faith and without notice of any claim (regardless of
the parties to it) to which the document might be relevant;
(b) nothing in this article shall be construed as imposing upon
the Company any liability in respect of the destruction of any
such document otherwise than in accordance with this article
which would not attach to the Company in the absence of this
article; and
(c) references in this article to the destruction of any document
include references to the disposal of it in any manner.
WINDING UP
160. If the Company commences liquidation, the liquidator may, with the
sanction of an extraordinary resolution and any other sanction required by
law, divide among the members in specie the whole or any part of the
assets, whether they shall consist of property of the same kind or not, of
the Company and may, for that purpose, value any assets as he deems fair
and determine how the division shall be carried out as between the members
or different classes of members. The liquidator may, with the like
sanction, vest the whole or any part of the assets in trustees upon such
trusts for the benefit of the members as he may with the like sanction
determine, but no member shall be compelled to accept any assets upon
which there is a liability.
INDEMNITY
161. Subject to the provisions of the Act, but without prejudice to any
indemnity to which a director may otherwise be entitled:
(a) every director or other officer or auditor of the Company shall be
indemnified out of the assets of the Company against any liability,
loss or expenditure incurred by him 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
as an officer or auditor of the Company to the extent permitted by
section 310 of the Act; and
(b) the directors may purchase and maintain insurance at the expense of
the Company for the benefit of any present or former director or
other officer or employee of the Company or an associated company or
any persons who are or were trustees of any pension fund in which
employees of the Company or any such associated company are
interested against any liability which may attach to him or loss or
expenditure which he may incur in relation to anything done or
omitted to be done or alleged to have been done or omitted to be
done as a director or officer.
49